HKSAR v. Lo Kai Ming, Gary

DCCC 449/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 449 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Possession of child pornography". The child pornography involved consists of 22 still photos and 180 video clips stored in a desktop computer.

Summary of Facts

2.On 12 March 2015, the Police executed a search warrant at the defendant's home situated at Choi Po Court, Sheung Shui.

3.A desktop computer which contained child pornography in the form of still photos and video clips was seized.  Under caution, the defendant admitted that he downloaded the photos and video clips from the internet.  In his video recorded interview, the defendant claimed that he was the sole user of the computer seized.  He also claimed that he had only viewed the child pornographic files contained in his computer and did not disseminate them on the internet.

4.The children depicted in the 180 video clips and 22 still photographs were all under 16.  The images are categorized as follows :-

(a) Level 1 (images depicting erotic posing with no sexual activity) – 10 photos and 10 video clips;

(b) Level 2 (images depicting sexual activity between children or solo masturbation by a child) – 6 photos and 55 video clips;

(c) Level 3 (images depicting non-penetrative sexual activity between adults and children) – 1 photo and 39 video clips; and

(d) Level 4 (images depicting penetrative sexual activity between children and adults; sadism or bestiality) – 5 photos and 76 video clips.

5.In the present case, in most of the Level 4 video clips, the male person(s) involved did not use any condoms.  In some of the Level 4 video clips, a hard object was inserted into the child's vagina.  Some of the children appeared to be in distress in the video clips.  A substantial number of the children depicted were aged between 5 and 13.  In one Level 3 video clip, the child depicted was only about 1.5 years old.

Mitigation & Sentence

6.The defendant is 25 and has a clear record.  Defence counsel Mr. CHEUNG informed me that the defendant was a swimming coach earning about $18,000 per month, but he quitted his job in late October this year.  He married his wife, who is also a swimming coach, in September this year.  His wife is now 6 months pregnant.

7.In mitigation, Mr. CHEUNG submitted that the defendant downloaded the photos and video clips out of curiosity.  He has all along been cooperative with the Police by disclosing the relevant password(s) of his computer.  Furthermore, as a swimming coach, the defendant is well-liked and respected by his students and their parents. Finally, Mr. CHEUNG complained that it took 14 months for the Prosecution to charge the defendant after he was arrested.  Hence, some discount should be given for the delay.  A bundle of mitigation documents was placed before me; their contents are duly noted.

8.I called for a Psychologist's Report.  The Clinical Psychologist made the following remarks :-

"Mr. Lo was assessed to be normal in cognitive functioning. Results of personality assessment coupled with clinical observation suggested that Mr. Lo was an introvert. He was socially reserved. … No indication suggested that Mr. Lo had paedophilic disorder."

In her conclusion, the Clinical Psychologist formed an opinion on the defendant that the risk of sexual recidivism is low; and no psychological treatment is recommended.

9.I note that 81 out of the total of 202 items found in the defendant's computer belong to Level 4.  I have viewed the photo albums submitted by the prosecution.  The images are no doubt repulsive and disturbing.  Apart from the depiction of their nudity and sexual activities, I see no additional maltreatment of or cruelty to the children (such as being tied up, caged or handcuffed).  I accept that other than falling within their respective category levels, those images carry no aggravating features.

10.I have borne in mind the sentencing principles laid down by the Court of Appeal in HKSAR v CHOY Ka Leung CACC 365/2012.  I am also aware that for Level 4 depiction of child pornography, an immediate custodial sentence in the range of 12 to 36 months[1] is warranted.  Having considered all relevant factors, I adopt a starting point of 21 months' imprisonment.  With the guilty plea, the sentence is reduced to 14 months.

11.Regarding the complaint of delay, prosecuting counsel Ms. POON has provided me with some landmark dates.  The defendant's computer was seized in March 2015.  It was sent to the Technology Section of the Police Force in April.  The files stored in the computer were retrieved in October.  The defendant was invited to attend a 2^nd interview in December.  He did so in early January 2016.  The case file was submitted to the Department of Justice for legal advice in April 2016, and advice was given promptly within 2 weeks.

12.Clearly, there were 2 noticeable time gaps, namely 6 months to retrieve the files; and 3 months to submit the case file for legal advice after the defendant's 2^nd interview.  Ms. POON explained that there was a long queue in the Technology Section; and the Police took time to view all images carefully.  I have no doubt that the reality was so.  But based on the information before me, the defendant has disclosed the relevant password(s) to the Police.  He has done his part.  I do not wish put the blame on anyone on the prosecution side, because I appreciate the workload of police officers in Hong Kong.  On the other hand, heavy workload and backlogs cannot be used as justifications each and every time.  In my view, the investigation of the present case cannot be more straightforward.  A time gap of 14 months from arrest to laying charge seems unduly long.  On this basis, I shall reduce the sentence by 1 month to reflect the element of delay.  I sentence the defendant to 13 months' imprisonment.