HKSAR v. Lee Ka Him

DCCC 825/2020

[2021] HKDC 1657

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 825 OF 2020

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REASONS FOR SENTENCE

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

Summary of Facts

2.On 18 May 2017, the police seized computers and one external hard disc from the defendant’s home.

3.There were a total of 1,122 child pornography videos being stored in the desk top computer and the external hard disk.

4.The defendant admitted under caution that he downloaded child pornography from Foxy and saved the videos in the computer.  He did not share the videos with others.  He believed that the persons depicted in the videos were under the age of 16.  In the videos, children were naked, some were having sexual intercourse.

5.The categorization of the subject videos is as followed: -

Level	Category	No of video files
1	Images depicting erotic posing with no sexual activity	120 0-5 years old: 7 6-10 years old: 66 11-15 years: 47
2	Sexual activity between children or solo masturbation by a child	258 0-5 years old: 8 6-10 years old: 117 11-15 years old: 133
3	Non-penetrative sexual activity between adults and children	93 0-5 years old: 16 6-10 years old: 58 11-15 years old: 19
4	Penetrative sexual activity between children and adults, including digital penetration, masturbation and oral sex or sadism or bestiality	651 0-5 years old: 44 6-10 years old: 336 11-15 years old: 271
Total		1,122

6.The aggravating sentencing features are as follows: -

Level (No of videos)	Penetration without use of condom	Child, being tied up, caged, or handcuffed	Distressed children	Ejaculation	Ejaculation inside private parts	Anal sex	Bestiality	Insertion of hard objects	Multiple Children
1 (120)	0	0	0	0	0	0	0	0	2
2 (258)	0	0	5	0	0	0	0	7	33
3 (93)	0	0	2	4	0	0	0	1	0
4 (651)	328	3	16	8	3	6	2	9	13
Total	328	3	23	12	3	6	2	17	48

Mitigation

7.The defendant has a clear record.  He is now 36.  He is married and lived together with his mother. 

8.The defendant was not aware that download child pornography was an offence.  All of them were for his personal viewing.  They were not for distribution or for commercial purpose. 

9.He started this habit of viewing pornography since 2007.  Since the age of 16, he took up part-time job and also attended a part-time social work course in 2011.  In 2015, he failed in one of the subjects and was not allowed to retake the examination after the restructure of the programme by the college.  As a result, his hope to become a social worker was dashed.  He was very disappointed and frustrated.  In 2016, the defendant was deeply frustrated by the home renovations.  He was further troubled by his unfaithful girlfriend, of whom he formed a very serious relationship.  The defendant was on the verge of emotional breakdown when they broke up in March 2017.

10.This was in those circumstances that the defendant viewed those download pornographies to release his stress, and I am told by the defence that those videos were created between 2007 and 2017.  The defendant was arrested in May 2017 and was prosecuted in September 2020.

11.The defence submitted that there is a substantial period of delay which caused him significant stress.  He has suicidal thoughts because of the prospect of losing his job and his future might be ruined with his criminal conviction. 

12.However, the defendant has improved himself with the support of his wife during this period of delay.

13.The defendant also contributed in the volleyball sports development in Hong Kong.  He is a registered level 2 referee with the Hong Kong Volleyball Federation and has served the interschool volleyball competition in a management role.

14.Both Psychiatrist and Psychologist are of the view that the defendant is not a pedophile and the chance of re-offending is at the low end.  The Psychiatrist said that the defendant received treatment in 2017 and has submitted an update report in January this year; the Psychiatrist also came to the conclusion that the defendant is very unlikely to commit such an offence again.

Sentence

15.Possession of child pornography is an extremely serious offence.  The maximum sentence is 5 years.  In Man Kwong Choi [2008] 5 HKLRD 519, the Court of Appeal laid down a sentencing guideline based on the level of eroticism of the pornography: -

(1)  Level 1: images depicting erotic posing with no sexual activity;

(2)  Level 2: images depicting sexual activity between children or solo masturbation by a child;

(3)  Level 3: images depicting non-penetrative sexual activities between adult and children;

(4)  Level 4: images depicting penetrative sexual activities between children, adults or sadism or bestiality.

16.In respect of different level of images, they have different sentencing guideline.  For child pornography at level 4, serious treatment is warranted.  Generally, sentences should range from 12 months to 36 months.

17.In the present case, there is a total of 1,122 video clips found from the defendant’s computer and hard disk: -

(1)  Level 1: 120 - that account to 10.6 per cent;

(2)  Level 2: 258 - account to 23 per cent;

(3)  Level 3: 93 - account 8.2 per cent;

(4)  Level 4: 651 - account to 58 per cent.

18.The children in all these 1,122 videos were from 0 to 15 years of age.

19.While in Level 4 category: -

(1)  0 to 5 years old: 44 children;

(2)  6 to 10 years old: 336 children;

(3)  11 to 15 years old: 271 children.

The total number of children is 651.

20.The total number of children in the following age group: -

(1)  from 0 to 5 years old :- 75

(2)  from 6 to 10 years old :- 577

(3)  from 11 to 15 years old:- 470

Total :- 1122

21.This is a shocking number.  As the question to ask: where do these unscrupulous people found so many unfortunate victims to make those pornography?  As the Court of Appeal said in the case of Chan On Shun, CAAR 3/2017:-

“If there was no one interested in child pornography, bad characters producing child pornography would be less motivated to exploit children, and use children in the production of pornography. Therefore, persons in possession of child pornography indirectly encourage such a shameless industry of child pornography production. For the protection of children, to protect them from sexual exploitation, the court must impose severe sentences for the offence of possession of child pornography”; “protection of children should be given more weight than the rehabilitation of the offender.”

22.In a gist, children should be protected as they are vulnerable. 

23.From the table prepared in the summary of facts, there were 23 children showed signs of distress; other children being tied up or handcuffed.  There were penetrations without condom, ejaculation inside private parts or on face, even sadism and bestiality.  Many of the numbers were shown in the table were in Level 4. 

24.With this information in mind, I now come to the mitigation present by the defence.  They are very much the same as stated in the defendant’s letter.  The circumstances of committing the present offence came from his study pressure.  He has problems to catch up with the syllabus.  He started to watch pornography since 2007 to release pressure.  In 2016, he was particularly stressful because of his relationship problem with his then-girlfriend and the renovation dispute at home.  There was no one to share his problem as he lived alone at that time. 

25.All along he did not know that by simply downloading those child pornography was illegal.  He said that he did not open most of them. He had no particular interest to watch child pornography.  However, there was 58 per cent of them in Level 4. 

26.Since his arrest in 2017, he has suffered from anxiety and depression with suicidal thoughts for obvious reason.  He felt shameful as to his conduct and his beloved mother was present during the police investigation and his arrest at home.  It also hurts him badly for his mother to worry about him.  He does not know what the future will hold for him. 

27.But now during the last few years he gradually comes out from his suicidal thoughts, with the support from his wife, of whom he married in 2019.  His wife also wrote a letter to tell me that he is a man of good character.  Not only that he finds the support from his wife, he also learns how to share his problem and stress with his mates in the church.

28.I am touched by his mother’s letter that she remains unmarried since her husband left her when the defendant was a little toddler so that she can give all her unconditional love to her children, including the defendant.  Today, she still stands by him.

29.As said before, this is a very serious offence.  Those child pornographies involved young children subject to sex abuse.  They involved with adult in sexual activities. There were significant harms being done to these children, as Court of Appeal in Man Kwong Choi said that “many of the victims grow up mentally scarred”.

30.As discussed in the case of Man Kwong Choi, that the main aspect of section 3 of the ordinance is a sentence of deterrence.  The deterrent sentence serves to protect the victim of child pornography and the society in general.  The court has the duty to impose a deterrent sentence for this offence.

31.The defence rely on the case of HKSAR v Leung Wai Lun, DCCC 877/2019, to ask for 3 to 4 months’ reduction of sentence because of the delay.  The defendant in DCCC 877/2019 was arrest on the same day as the defendant in the present case.  He was charged in October 2019 and was sentenced in October 2020.  The learned judge acknowledged that there was a period of delay and allowed a further reduction of 2 months’ imprisonment.

32.In the present case, the paper was only submitted to the DOJ for legal advice in November 2019 and legal advice was only available in September 2020.  The defendant was charged in September 2020.  The case was transferred to the District Court in October 2020.  The defence was served with the case bundle in January 2021. Between January to March 2021, there were exchanges between the defence and the prosecution as to the age of children in some of the videos who were over the age of 16.  Today, I am told the prosecution removed those video which has been in dispute as to the age of the children. 

33.I accept there is a delay in prosecution.  In such circumstances, I will reduce a 3 months’ imprisonment from the sentence.

34.As to number of videos, there is a bearing in sentence.  The prosecution said there were some duplication in the clippings of the videos.  Deducting the duplicated number from 1,122, it arrives at 946.  The defence accept that, whether it was 1,122 or 946, it remained as a large number of videos. 

35.My view was that each download amounts to one video, whether or not it was duplicated.  The defence cannot pray in aid of the sentence in DCCC 877/2019 as the number of videos was 508 in total.  However, the defendant in the present case, just the number of Level 4 alone was 651.  I accept that the sentence in Level 4 is in the range of 12 to 36 months.

36.To this end, bearing in mind of all the mitigating factors before me, I consider that a starting point of 30 months is appropriate, reduced to 20 months after one-third discount.  I further reduce 3 months on the mitigating factor of delay.

37.The defendant is ordered to serve a sentence of 17 months imprisonment.