HKSAR v. Yuen Chuen Fu

DCCC 141/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 141 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to one count of possession of child pornography.

2.The particulars of the offence are that on 19 April 2016, at home, on his desktop computer, he had in his possession 67 video clips containing child pornography.  Obviously, the police received information and obtained a search warrant for the defendant’s home. On that morning of 19 April they arrived and searched, in particular, the defendant’s bedroom.  A police officer checked the defendant’s desktop computer and found child pornographic videos, and ultimately, 67 videos were found.  Of that 67, according to the categories set out in the Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, with category 4 being the most serious out of 1 to 4, there were 13 level 1 videos, 19 level 2 videos, 1 level 3 video and 34 level 4 videos.

3.When the defendant was arrested and cautioned, he fully admitted the offence to the police.  He admitted that all 67 were downloaded by himself.  No one else was to blame or knew, and he didn’t know it was illegal to download them.  He again later, under caution, said he did this out of curiosity.  He downloaded them for his own viewing.

4.I accept there is no evidence he intended to share or publish these videos or even show anyone else.

5.The defendant’s best mitigation is his plea of guilty, which I know he indicated this plea from as early as possible.

6.The defendant is now 27 years old.  He does have one previous conviction.  In 2011 he was convicted of committing an act outraging public decency.  The facts of that charge were that he attempted to film under skirts.  He was sentenced to a probation order for 12 months.  That offence is sexual in nature, but, in my view, not comparable to the offence today.  It is nothing as serious as the offence today.

7.Unlike the psychologist, I do not categorise the defendant as a repeat sexual offender.

8.After hearing the defendant’s plea, I called for a psychologist’s report, a psychiatrist’s report, and a background report.  The psychiatrist opines the defendant does not suffer from any psychiatric disorder.  I do not intend to repeat the details of all these reports, but as far as background is concerned, the defendant grew up as an only child of a harmonious and intact family.  He achieved a university education and is a graduate.  However, when he was arrested, he was working as a waiter, clearly not working to his full potential, but this may speak volumes for his character and personality.  The reports clearly show that he is a man who is not a confident young man.  He is described as an introvert, with poor social skills and few friends.  He suffers from low self-esteem.  He does not have a large social circle.  This means he has had little contact with members of the opposite sex, even though he does show an interest.  He has not dated or had an intimate relationship with a girl.  This may explain why his sexual gratification comes from online material.  He began with viewing adult pornography, which led to a site of child pornography, leading to him downloading what the police found on his computer.

9.From the reports and mitigation, clearly, the defendant’s parents are very supportive; shocked by the offence, but supportive. Both have visited the defendant as frequently as they can since he has been in remand.

10.The reports show that the defendant is and was willing to talk to the doctors and did disclose his emotions.  There is a concern that he does not realise the negative impact of this type of obsession on his own psychological wellbeing.  The psychologist suggests treatment on intimacy skills, stress coping, and deviant sexual interest to prevent reoffending.

11.The psychologist does say that she suspects paedophilic tendency, but this word “suspects” worries me.  It is not a diagnosis or an opinion.  She goes on to say the defendant’s risk of reoffending is moderate.  The defendant is adamant that that is not accurate. In fact, the defendant is sure he will not reoffend and the risk is non-existent, because he now knows the seriousness of this offence and the consequences it brings.

12.I have received a letter from the defendant today.  I am sure he now knows that although he may not have directly harmed any child, he now knows the seriousness of merely possessing and viewing such material must not be underestimated.  It is the demand for such material by online users that means children will continue to be exploited and harmed to supply that demand.  The harm to children, both physically and psychologically, is irreversible.  Sadly, it is a worldwide problem.  Law enforcement agencies around the world are trying to deal with this problem, and Hong Kong must do its part to try and protect children from such depravity.

13.I do accept the defendant only downloaded the material for his own purposes.  If he intended to share, publish or distribute any of those videos, that would constitute an aggravating factor.  Another aggravating factor would be the number of images.  I take into account the number here is not a significant amount compared to some other cases we have seen go through this court.

14.I have been helpfully assisted by both the prosecution and the defence where authorities are concerned, and Mr Wong, on behalf of the defendant, has said all he can say, and prepared mitigation in a most helpful manner.

15.The authority of Man Kwong Choi not only categorises this type of pornography, but sets out some sentencing guidelines. The level 4 category, which is where there is penetrative sexual activity between children and adults, or sadism, or bestiality, these merited the most serious treatment and attracted custodial sentences generally of 12 months, even for a few images, to 36 months.

16.The prosecution’s other helpful authority is HKSAR v Choi Ka Leung, which discusses tariffs and reviews similar cases where the sentences are upheld and what sentence was imposed, and also reviews the range of starting points.

17.Mr Wong, for the defendant, has also cited several cases with a similar number of category 4 videos, as well as highlighting the range of starting points for those cases.  Mr Wong also suggests that there has been a delay in prosecuting the defendant.  There was a 10-month gap between arrest and charging the defendant, and I accept the defendant may have suffered stress and anxiety during that period of time, waiting for this case to come to court, but I do not find 10 months so long as to merit a reduction in sentence.

18.I have also considered the contents of the defendant’s letter of mitigation.  I accept his remorse is genuine, and I accept his distress that he has disappointed his parents and made them suffer is also genuine.  I also have today a letter from the defendant’s house master at school, and he was his house master for a period of three years, from Form 3 to Form 5.  Perhaps this is a more pertinent letter, because I accept his teacher would know him well.  He described the defendant as being, during his five years at school, a good student, helpful, positive and studious.  He is sure that the defendant is remorseful and will not reoffend. He asks the court to treat the defendant with leniency and mercy.

19.I have taken into account the facts of this case, in particular, the number of videos, which category they are in, and the details provided by the police of the content.  I have also taken into account the tariffs from the Court of Appeal.  I give weight to the defendant’s plea and remorse, as well as the fact there are no aggravating factors as set out by the Court of Appeal.  Lastly, I consider mitigation and the content of the reports before me.

20.I find that an appropriate starting point would be one of 18 months’ imprisonment.  He has pleaded guilty and he is entitled to a discount of one-third.

21.After that discount is applied, for this charge, the defendant is sentenced to 1 year’s imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: I understand.