HKSAR v. Yung Po Tsun

DCCC 375/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 375 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has entered a plea of guilty to one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.

2.The particulars of the offence show that on 12 March 2015 in premises in Ho Man Tin, Kowloon, the defendant had in his possession child pornography, namely 263 photographs and 778 video clips containing child pornography, stored on his desktop computer.

3.The facts of the case, admitted by the defendant, include a police raid at about 5.30 in the morning on that day, armed with a search warrant.  Upon a search of the defendant’s home, they found on his desktop computer some child pornography.

4.The defendant was arrested.  Under caution, he admitted that he had downloaded, for his own viewing, child pornography out of curiosity.

5.The police seized that desktop computer as well as two hard drives.

6.In a subsequent video-recorded interview, the defendant made a full admission.  He explained that although he knew it was illegal, he had downloaded over the past four to five years child pornography using a software called “Foxy”.  He stressed the downloaded material was for his own viewing only.  He felt he had poor social skills and had put up social barriers to explain his behaviour.

7.On the two hard drives seized there were no incriminating material.  On the desktop computer the police found, after an examination by a forensic team, the child pornography.  The images were categorised, and in level 1 there were 254 videos and 14 photographs; in level 2 there were 72 videos and 12 photographs; in level 3 there were 239 videos and 236 photographs; in level 4 there were 213 videos and 1 photograph.

8.The defendant has a clear record.  At the time of his arrest he was 23 years old.  He is single and living with his family.  His best mitigation is his plea of guilty.

9.I did call, after that plea was entered, for certain reports.  Those included a background report, a psychiatric and a psychological report.  I will not repeat the details of the reports, but clearly, despite the defendant leaving school with little qualifications, he worked hard when he left school.  He worked firstly at Japan Home Stores, earning between $9,000 to $10,000.  He would give his family $3,000.  He then changed jobs for a higher salary, working as a transport worker.  Ultimately, he decided he wanted to train as a dim sum chef, which requires many years of apprenticeship.  He has been working as an apprentice and is now receiving a salary of $16,500 a month.  He now gives $6,000 to his parents.  Since he left school he has never been unemployed, which is an indication of his hard‑working character.  He has told the probation officer he is very keen to qualify as a dim sum chef.

10.At school, he was not very academic but tried hard and was a well-behaved student.  He was a talented basketball player and sportsman.  His last form teacher has written a letter of mitigation and confirmed this was the defendant’s character.  I also have a letter from a friend who has known the defendant for over 10 years.

11.From the report I have been told the defendant had a girlfriend at school and they dated for four years.  When they broke up, the defendant became very lonely.  This led to him drinking alcohol, and also this was about the time he started to download child pornography. However, for the past year before his arrest, he has been dating a new girlfriend.  They have a good relationship, and he cares for her enormously. She has forgiven him for this matter, and saw in their relationship no deviant signs from the defendant at all.  They had a normal relationship.

12.The psychiatrist says the defendant is not suffering from any psychiatric disorder.  The psychologist says that the defendant has told the doctor that he has no sexual attraction to children, only adult women.  He is not a deviant and has a healthy normal sex life.  He does not fantasise about children and he did only download and view the pornography out of curiosity.  He did not realise the seriousness of his actions.  He is very upset about disappointing his family.  He even has suggested that his own brother disown him.  The psychologist concludes that the defendant has poor stress coping skills, and when he broke up with his first girlfriend, he harboured a lot of loneliness and boredom.  She says the risk of the defendant committing a similar offence is not impressed to be high.  She does suggest some counselling services for his stress coping skills and exposure to this pornography.

13.I have had letters of mitigation from all members of the defendant’s family, and, as I have said, a teacher and a good friend.  All express shock that the defendant has committed this offence.  All say the defendant is a filial son, was a hard‑working student and a good friend.  He was respectful of his present girlfriend.  All believe he is very remorseful and will not reoffend.  In fact, they are of the view that he is more upset that he has disappointed his parents, more worried about them, than he is about himself.  All ask for leniency on his behalf.

14.Mr Chui has said all he can on behalf of the defendant.  Having heard the mitigation and read the reports, I accept there is an absence of evidence to suggest he is a paedophile.  I accept he is remorseful and unlikely to reoffend.

15.I also take into account his family support, hard‑working nature, ambitious goals and previous clear record.  I also take into account how he downloaded the pornography.  There is no evidence he distributed it nor intended to gain commercially.

16.I take into account the number of images and videos and the classifications of those images and videos.  I have taken into account the authority of Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519.  That authority refers to the different levels of seriousness of the child pornography.  The authority classifies four levels and indicates sentences appropriate when charged with possession of that particular category or level of pornography, level 4 being the most serious and depraved pornography. 

17.The Court of Appeal is of the view that where a few images are possessed, a starting point of 12 months could be appropriate.  In any event, between 12 to 36 months is appropriate.

18.The number of images and videos here are not a few.  In category 4 alone there are 213 videos.

19.I also need to consider if there are any aggravating factors.  That includes the age of the children depicted. Obviously the images depict young children, some as young as 3.  I have seen a folder of stills submitted by the prosecution to me.

20.I have also been referred to two authorities by Mr Chui for the defendant, and those include HKSAR v Choy Ka Leung CACC 365/2012 and HKSAR v Yau Yan Kit DCCC 171/2010.  In the authority of Choy Ka Leung, the Court of Appeal actually refer to sentences for several cases, including that of Yau Yan Kit.  What it does confirm, that authority, is that each sentence must be decided on the facts individual to each case.  To come to an appropriate starting point, there are certain relevant factors, and I have already referred to those.

21.Mr Chui says, on behalf of the defendant, that there has been a delay in charging the defendant.  In fact, there was one year and one month between arrest and the defendant being charged.  In that time, the defendant has suffered from insomnia and the stress has been heavy, and I am sure that is the case.  The prosecution have explained the timeline involved in the investigation.  In fact, the forensic team took seven months to examine the desktop computer, and one of the reasons it took seven months was their workload was heavy.  There has not been any fault of the team investigating the defendant.

22.I accept that one year is a significant period of time, but it is not an excessive delay.

23.Defendant, please stand up.  I have considered, coming to the appropriate starting point, the authority of Man Kwong Choi, the facts of the case, the number of images and videos in each category, the age of some of the children depicted, the defendant’s full co‑operation with the police, mitigation put forward, the details of the defendant’s background in the background report, as well as the details from the two professional reports.  Lastly, I take into account the defendant’s previous clear record.

24.I consider that an appropriate starting point in this case would be one of 24 months.  The defendant has pleaded guilty, and is entitled to a discount of one-third for that plea.

25.After that discount is applied, the defendant is sentenced to 16 months’ imprisonment for this charge.  Do you understand?