HKSAR v. Reese Robert Miles David

DCCC 936/2020

[2022] HKDC 197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 936 OF 2020

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REASONS FOR SENTENCE

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1.The defendant stands convicted after trial of 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 my reasons for verdict handed down today.  In summary on the morning of 22 November 2016 the police conducted a search at the defendant’s residence.  The police seized from the living room a black desktop computer.  A preliminary examination revealed video clips suspected to be child pornography. 

3.The defendant was arrested and cautioned for possession of child pornography.  The defendant replied that he downloaded those pornographic videos but seldom watched them and asked for a chance.

4.Later the same day in a video recorded interview, the defendant admitted, inter alia, that the computer belonged to him; he downloaded the child pornography videos by using a programme called eMule; he started downloading child pornography videos a few years ago when he had a lot of spare time and was under pressure, stress and depression; he knew what he had downloaded but did not have much time to watch any of them but had watched some; it was a habit he could not control and he knew it was wrong.

5.Admitted in evidence at trial was that on 22 November 2016 12,275 photos and about 2,793 videos, including the 4,738 photos and 931 video clips containing the child pornography particularised in the charge, were stored in the computer and that all depict real children under the age of 16 years[2].

Mitigation

6.In passing sentence, I have carefully considered the submissions of Mr Cao, including that the defendant who is 46, divorced with two teenage children who are studying, has a clear record. 

7.Mr Cao asks the court to take into account that the defendant admitted all the photographs and video clips particularised in the charge are child pornography thereby saving considerable court time. 

8.Mr Cao also asks the court to take into account that the defendant, as he told the police on arrest and in the video recorded interview, only rarely watched the child pornography.

Guidelines

9.In the Secretary for Justice v Man Kwong Choi the Court of Appeal laid down guidelines as to sentence for possession of child pornography[3].  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[4].  

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 and the number of images. 

12.Mr Cao informs the court that the defendant agrees the classification of the photographs and video clips set out in Table 1 in the prosecution opening[5].  The child pornography is of real children including children under 5 years of age.  The classification of the photographs and video clips is as follows:

Level 1 – 2884 photographs and 172 video clips

Level 2 – 369 photographs and 137 video clips

Level 3 – 711 photographs and 132 video clips

Level 4 – 774 photographs and 490 video clips

13.In Secretary for Justice v Man Kwong Choi the Court of Appeal emphasised the importance of the sentencer examining the images or, at the very least, a representative sample, so that their true nature and gravity is made apparent[6]. 

14.Two box files containing a selection of the photographs and screen captures from the child pornographic videos were admitted in evidence during the trial[7].   I have looked at the two box files.  The box file of photographs contains 774 photographs.  The box file of screen captures contains screen captures from 490 video clips. 

15.They are nothing short of repulsive and disgusting.  Having looked at the photographs and video clips I find the descriptions accurate.  Both the photographs and video clips show intercourse without the use of condoms; acts of buggery; oral sex with both boys and girls; group sex and hard objects inserted in the private parts of young girls. 

16.Many of the photographs are of very young children aged around 3, 4 and 5.  For example Photographs I-7 (M1)  include children as young as 3 and 5 on pages 16 and 17.  Photographs I-8 (M2)  include a baby on pages 29 and 30 and a boy aged around 3 on pages 33-35.  Photographs I-11 (M4)  include a girl aged around 3 on page 2.  Photographs I-14 (M5)  are of unprotected sex with a girl aged around 4.  Photographs I-34 (M8)  page 1 shows buggery with a baby aged around 1. 

17.The duration of the video clips ranges from a few seconds to over one hour with three clips over three hours.  Many show unprotected intercourse between adults and young children.  Video clip I-3 (K1), page 16 shows something inserted in the mouth and private parts of a girl aged around 13.  The title of the video clip includes “Little Girl Pain – Extreme Sex”.  Video clip I-3 (K1), pages 23, 24 and 232 show the girls distressed.  A girl aged around 4 is tied down in video clip I-7 (K2), page 3.  The hands and legs of a girl aged around 6 appear to be taped in video clip I-11 (K4), page 3.  Video clips I-13 (K5)  show many children aged between 3 to 6 including acts of buggery.  The hands of a girl aged around 9 appear to be chained in video clip I-34 (K6), page 6. 

18.In passing sentence I take heed of what was said in the Scottish case of Her Majesty’s Advocate v David William Graham 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[8].

The number of photographs and video clips

19.The number of images was said in Secretary for Justice v Man Kwong Choi to be a relevant factor in considering whether there are aggravating features of sentence.  Similarly, in R v 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 R v Somerset 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[9]. The court said that a sensible assessment and adjustment would therefore be needed where video footage was involved. 

21.R v Somerset was referred to in Her Majesty’s Advocate v David William 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.

22.In Secretary for Justice v Man Kwong Choi the total number of images was 1157 and video files was 245, which the Court of Appeal regarded as large[10].  187 images and 69 video files were at Level 4 and Level 5[11]. 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.

23.The total number of photographs and video clips being 4,738 and 931 respectively are substantially more than in Man Kwong Choi.  All the photographs and video clips are of real children of which 774 photographs and 490 video clips are classified as Level 4.   Again those classified as Level 4 are substantially more than in Man Kwong Choi. 

24.Account must also be taken not only of the Level 4 child pornography but also of the quantity of pornography classified under the other levels[12].

25.The large quantity of video clips and photographs, particularly at Level 4, is in my view an aggravating feature of sentence.  As noted already the children in many of the photographs are very young with some photographs of babies and acts of buggery. 

26.Taking into account that the maximum sentence for possession of child pornography is 5 years’ imprisonment, I am satisfied by reason of the total number of photographs and video clips and that the total number at Level 4, most video clips being at Level 4, justifies a sentence of imprisonment beyond the upper range of the general guideline of 3 years’ imprisonment set out in Man Kwong Choi[13]. I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate. 

Delay

27.Mr Cao submits a material discount in sentence should be given for the delay in bringing the case to trial, over five years having elapsed since the defendant’s arrest during which time the defendant has been under great stress. 

28.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[14].

29.The defendant was arrested on 22 November 2016, charged nearly four years later on 15 September 2020 and first appeared in court on 22 September 2020. 

30.Mr Percy informs the court the file was first submitted to the Department of Justice for legal advice on 24 September 2019, almost three years after the defendant’s arrest.  Mr Percy explains the time taken to submit the file to the Department of Justice was because of the large quantity of material to examine and that there had been three different officers in charge of the investigation.  After the file was submitted to the Department of Justice advice was given to view the files for the purpose of classification.

31.Whilst time was clearly required to examine the desktop computer nearly four years to charge the defendant does appear to be a long time.  Arguably the matter could reasonably have been brought to court earlier than it was.  I am satisfied some credit should be given in sentence for this delay[15]. In all the circumstances I reduce the sentence by 4 months’ imprisonment to 3 years and 2 months’ imprisonment.

32.The defendant is sentenced to 3 years and 2 months’ imprisonment.