HKSAR v. Liu Chi Shing

DCCC 367/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 367 OF 2017

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Reasons for Sentence

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

2.The defendant lived at a flat in the New Territories, and on the early morning of 19 April of 2016, the police executed a search warrant at that location.  A preliminary investigation of the computer showed that it contained Foxy software, and a number of child pornographic videos were found in the Foxy folder.

3.The computer was seized and examined.  A total of 75 video clips inside the hard drive were found to be classified as child pornography.  The relevant videos were extracted from the computer and were examined and classified into the four levels that can be seen identified for classification in the Court of Appeal case of Secretary for Justice v Man Kwong Choy [2005] HKLRD 519.

4.At level 1 there were no videos; level 2, 13 videos; level 3, 13 videos; and at level 4, 49 videos.

5.2 videos depicted children aged under 5; 39 depicted children aged between 5 and 9; 30 depicted children aged between 10 and 13; and 4 depicted children aged between 14 and 15.  A more detailed classification chart can be seen at annex A of the agreed Summary of Facts.

6.In a later video-recorded cautioned interview, the defendant admitted downloading the child pornographic videos that we are concerned with.

7.The defendant’s background is that he is aged 22.  He has a cohabitant aged 20 and two young sons aged 2 years and 1 year.  There seems to be a somewhat troubled family background, but the cohabitant is still, as I understand it, standing by him.

8.I also obtained a psychological report which identifies what could be described as personality defects the defendant suffers from.  He is described as self-centred, immature, dominant, rigid and self-righteous.  He is the victim himself of childhood physical abuse and sexual abuse.  That led him to having a negative world view and becoming mistrustful.

9.The psychologist identifies the defendant’s downloading of child pornography to arise more out of anger than sexual interest.  There is no evidence to suggest the defendant had paedophilic disorder.  He has limited insight into his problems, however.  Because of that, his risk of sexual recidivism was assessed to be moderate.  He would benefit from psychological treatment targeting his depression and anger management and emotion coping.

10.Having a look at the sentencing considerations, according to the case of Man Kwong Choy I have already referred to, the sentence for this offence focuses on deterrence to protect children who are subject to sexual exploitation and moral depravity.  Where the number of video clips, especially level 4 material, is large, the sentence would generally be substantial.  As a general guidance, the Court of Appeal has suggested a range of between 12 months for a few images and 36 months for a large number of images.

11.Other mitigating factors for the defendant are firstly that he is of clear record - no previous convictions; he is remorseful; and has pleaded guilty.  He also has family that he must consider.

12.As far as sentencing this defendant is concerned, in this case, clearly, girls of tender or young age are exploited to feature in explicit sexual acts.  The videos at levels 2 and 3 are not substantial, and I believe the videos at level 4 could be described as a medium quantity.  From this, what is described as a deterrence sentence is the appropriate approach to sentencing in this case.

13.Having regard to all these factors, I will take a starting point of 18 months’ imprisonment.  I reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.