HKSAR v. Leung Kong Kei

DCCC 82/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 82 OF 2017

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REASONS FOR SENTENCE

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1.Leung Kong Kei you have pleaded guilty to one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance[1].

2.Full particulars of the offence are set out in the facts admitted by you on 27 April 2017.  In summary on 12 March 2015 the police seized from your bedroom a desktop computer, which on a preliminary examination was found to contain child pornography.  Upon further examination by a computer forensic examiner a total of 613 photographs and 309 video clips of child pornography were found on the computer. 

3.In a video recorded interview, you admitted downloading child pornography for five years which you saved on the hard disk of the computer and said the child pornography was for your own viewing and was not shared with others.    

Mitigation

4.In passing sentence, I have carefully considered everything said on your behalf by Mr Tsang together with your mitigation letters and the content of the psychological and background reports.  I take into account you have no previous convictions.

5.The reports describe you as a loner with few friends, feeling uneasy in social situations. The psychologist describes you as an introverted, passive, low self-esteemed and unmotivated person.  Under excessive stress you became withdrawn and disorientated and shut yourself off from the outside world.  At home you indulged in playing Japanese video games and watching animation in the virtual cyber world[2].

6.Feeling nervous about talking to women and worried about rejection, you satisfy your sexual needs by watching pornography downloaded from the internet.  You told the psychologist that you first downloaded child pornography in 2012.  At that time you were appalled by what you saw but later developed an interest in watching child pornography as this brought you a different excitement from adult sex videos[3].

7.By reason of your fascination in the sexual reactions of children the psychologist is of the opinion that you display features of Paedophilic Disorder, which is a kind of deviant sexual interest towards children.  The psychologist assesses your risk of committing sexual offences involving children to be above average[4]. 

8.Psychological treatment focusing on your heterosexual skills, motivation to change, deviant sexual interest, and prevention of sexual reoffending is recommended.  Mr Tsang informs the court that you are willing to seek psychological help.  In your second mitigation letter written during the remand you accept the analysis of the psychologist and express a desire to deal with your problem.  You say you hope after coming out of the darkness to lead a new life. 

Guidelines

9.In the Secretary for Justice v Man Kwong Choi[5] the Court of Appeal laid down guidelines as to sentence for possession of child pornography.  In setting the guidelines the Court of Appeal considered the classification levels adopted in England together with the factors relevant to sentencing referred to in R v Oliver[6].  

10.The Court of Appeal adopted four classification levels of child pornography involving real children:  Level 1 – images depicting erotic posing without sexual activity; Level 2 – sexual activity between children or solo masturbation by a child; Level 3 – non-penetrative sexual activity between adults and children; and Level 4 – penetrative sexual activity between children and adults, and sadism or bestiality. 

11.The Court of Appeal considered Level 4 cases as meriting the most serious treatment and said the range of custodial sentences should generally be from 12 months to 3 years.  The Court of Appeal also listed a number of aggravating features including the age of the children depicted; an intention to publish and the number of images. 

12.The maximum sentence for possession of child pornography being 5 years’ imprisonment it follows that where there are one or more aggravating features the starting point could well exceed 3 years’ imprisonment[7].  

13.The child pornography is of real children from the very young to teenagers.  The classification of the photographs and video clips are as follows:

Level 1 – 161 photographs and 26 video clips

Level 2 – 120 photographs and 74 video clips

Level 3 – 256 photographs and 84 video clips

Level 4 – 76 photographs and 125 video clips

14.The prosecution have submitted to court a photograph album comprising of 20 photographs representing a sample of the pornography found on the computer.  The photographs and films are nothing short of repulsive and disgusting. 

15.There are many very disturbing images, in particular those showing sexual intercourse with a dog (photos 19 & 20); young children being tied up (photos 11 & 15); hard objects placed in the private parts of young girls (photos 9, 10 & 13); and photographs of young girls, one as young as 3, being subjected to oral sex with semen being ejaculated over their face or body (see for example photos 2, 3, & 5)[8].

16.Much of the conduct depicted in the photographs must have caused fear or distress to the child victims.  This is most apparent in photographs 8,14 &15.    

17.8 photographs and 7 video clips at Level 3 and 6 video clips at Level 4 are of children under 5.  As said in Oliver assaults on very young children attract particular repugnance and may by the conduct depicted in the image indicate the likelihood of physical injury to the private parts of the children. 

18.In passing sentence I take heed of what was said in the Scottish case of Her Majesty’s Advocate v David William Graham[9] that if the sentencer thinks appropriate to view all or a sample of the images, he should be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen.

The number of video clips and photos

19.The number of images was said in Man Kwong Choi to be a relevant factor in considering whether there are aggravating features of sentence.  Similarly, in Oliver the Court of Appeal said if there is a large number of images this is capable of aggravating the seriousness of a particular offence.  The court went on to say that it is impossible to specify precision as to numbers and sentencers must make their own assessment of whether the numbers are small or large.

20.In Graham the court said that the number of indecent images downloaded by offenders reflects the ease with which they can access such material through the internet and that it was not unusual for offenders to have more than 40,000 images.  The court went on to say that what is a small or large quantity must be, to an extent, a matter of judgment in each particular case. 

21.Accepting a general benchmark would be useful the court was of the opinion that an offender who takes, distributes or possesses a quantity in the low hundreds can properly be said to have accessed a small number of images and images numbered in high hundreds or in thousands can properly said to be large.

22.The total running time of the 309 video clips is 118.5 hours.  In R v Somerset[10] the court said that it was unrealistic to suggest that video films should be regarded as the equivalent of a single still image, in particular when some of the films ran for several minutes, and in one case for nearly fifteen minutes. The court said that a sensible assessment and adjustment would therefore be needed where video footage was involved. 

23.Somerset was referred to in Graham where the court said that whether a video clip is worse than a still image will depend in every case on its length, on what it depicts and how it depicts it.  Without attempting any detailed arithmetical computation, the court said the sensible approach is simply to make an allowance for the fact that a moving image may be more vivid and corrupting than a still image, however the primary factors to which a sentencer must have regard remain the nature of the images and the extent of the offender’s involvement with child pornography.

24.Mr Tsang refers the court to two sentencing cases in the District Court where a starting point of 2 years and 6 months imprisonment was adopted[11].  In both cases the video clips were less in number, including at Level 4.

25.Man Kwong Choi concerned a review of sentence in respect of two different cases.  In CAAR 8/2009 the total number of images was 1157 and films was 245, which the Court of Appeal regarded as large.  187 images and 69 films were at Level 4. The images were all of real children with apparent ages between 5 and 12, with more than half the images showing children with adults.  The defendant who possessed the images for his personal use was 31 with one previous conviction for indecent assault on a girl aged 12.  The Court of Appeal said a sentence of 3 years’ imprisonment should have been imposed.

26.I am satisfied 613 photographs and 309 video clips (totalling over 118 hours) with 76 photographs and 125 video clips at Level 4 is also to be regarded as large.

27.Taking into account the number of photographs and video clips and the number at Level 4 including photographs and video clips of children under 5, I am satisfied a starting point of 3 years’ imprisonment is appropriate.  This is the same starting point upheld by the Court of Appeal in HKSAR v Choy Ka Leung[12], a case involving 157 video clips and 2,457 photos of which 27 video clips and 145 photos were at Level 4.

28.Giving you full credit for your plea of guilty reduces the sentence to 2 years’ imprisonment.

Good character

29.You have a clear record.  In Oliver the court said some, but not much weight should be attached to good character.  The guidelines in Man Kwong Choi are those for a first time offender who is in possession of child pornography.  In Choy Ka Leung the Court of Appeal reiterated that the one-third discount is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time but that the court can in the exercise of their discretion take into account other mitigating factors such as positive good character and/or exceptional contribution to society[13].  Nothing has been placed before me to suggest positive good character and/or exceptional contribution to society.  I am satisfied no further discount is to be given by reason of your clear record. 

Delay

30.Mr Tsang refers the court to HKSAR v Lo Kai Ming[14] where the sentencing judge reduced the sentence by one month by reason of the unduly long time, 14 months, from arrest to the laying of the charge.  A similar approach was also taken in HKSAR v Choy Ka Leung where the trial judge reduced the starting point by three months due to the stress suffered by the defendant arising from a delay of 20 months from arrest to charge. 

31.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[15].

32.Mr Lui has submitted to court a one-page chronology setting out the action taken in the investigation[16]. You were arrested on 12 March 2015 and charged almost 22 months later on 3 January this year.  Mr Lui explains the long time in completing the investigation, some 14 months, was due to the fact that there were seven hard discs on the computer containing 14.3 TB.  Eventually 84.9 GB was extracted and as noted earlier the video clips alone ran to 118.5 hours.  I note 4 months was spent in seeking approval to buy hard discs to copy the material.

33.Due to the large number of suspected child pornography found on the computer time was clearly required to investigate and consider the case.  I am satisfied there has been no undue delay.  The fact remains, however, that over two years have elapsed since your arrest.  Arguably the matter could reasonably have been brought to court earlier than it was. 

34.I am satisfied some credit should be given in sentence for this delay[17].  In all the circumstances I reduce the sentence by 2 months’ imprisonment. 

35.You are convicted and sentenced to 1 year and 10 months’ imprisonment.

36.I am asked by Mr Tsang to direct that you receive psychological treatment while serving sentence.  In your letter written during remand you express a strong desire to receive treatment.  I therefore direct that while serving sentence you receive psychological treatment as deemed appropriate by the Correctional Services Department. 

[1] Cap 579. 

[2] See §§5, 10, 11 & 12 of the psychological report and §§2 & 7 of the background report.

[3]See §§7, 8, 9, 11 & 12 of the psychological report.

[4] See §11 & 13 of the psychological report.

[5] [2008] 5 HKLRD 519.

[6] [2003] 2 Cr App R (S) 64. In April 2007 the sentencing levels identified in Oliver were reviewed and replaced by the Definitive Guideline on the Sexual Offences Act 2003 issued by the Sentencing Guidelines Council.

[7] See HKSAR v Choy Ka Leung CACC 365/2012 at §30.

[8] For a full description of all the photographs and videos showing disturbing images see §5 of the admitted facts.

[9] [2010] HCJAC 50.

[10] [2006] EWCA Crim 2469.

[11] DCCC 32/2013 & DCCC 744/2016.

[12] CACC 365/2012.

[13] See paragraphs 16-18 of the judgment.

[14] DCCC449/2016.

[15] See for example HKSAR v Cheung Suet Ting CACC 226/2009.

[16] Actions Timeline of WTS RN 15009478.

[17] See HKSAR v Wong Ka Wah CACC 260/2006.