COURT: The defendant pleaded guilty before me to a total of four counts, as follows: One count of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579, which I will simply refer to as the PCPO, being Count 1 on the indictment; two counts of making child pornography, contrary to section 3(1) of the PCPO, being Counts 2 and 4; one count of unlawful sexual intercourse with a girl under the age of 13 years old, contrary to section 123 of the Crimes Ordinance, Cap 200, that being Count 3.
Summary of Facts
Count 1
At around 8.04 pm on 4 August 2021, police officers intercepted the defendant for enquiry in Oi Man Plaza, 60 Chung Hau Street, Ho Man Tin, Kowloon, when conducting an anti-crime patrol.
With the defendant’s consent, the police officers examined the defendant’s three electronic devices, namely, one iPhone 12, one iPad, and one iPhone 6. A large amount of child pornography, including pictures and videos were found.
The defendant was arrested for the offence of “possession of child pornography”. Under caution, the defendant admitted that he downloaded the photos and videos of “young girls” for his own viewing.
Over 12,500 photos or images and videos were retrieved from the three electronic devices by the police, and 135 images and 222 videos have been identified as child pornography. Their child pornography levels were classified as follows:
(a) Level 2, 128 images and 201 videos;
(b) Level 3, three images and one video;
(c) Level 4, four images and 20 videos.
Count 2 - Making child pornography
In addition to the videos mentioned in Count 1, nine other videos which depicted the same girl, who I will simply refer to as A, were found in one of the defendant’s phones. The age of A is unknown, but the pathologist who viewed the videos opined that the sexual features of A were compatible with girls of early puberty stage.
Under caution, the defendant admitted that A became his girlfriend half a year ago. The defendant did not know of her age. He filmed A performing oral sex upon the defendant and when they were having sexual intercourse.
The nine videos, the subject of count two were child pornography. Three of them belonged to level 2, three of them belonged to level 3, and three of them belonged to level 4.
Counts 3 and 4
In addition to the videos already mentioned in Counts 1 and 2, 11 videos which depicted the same girl, X, were found in one of the defendant’s phones. In mid-June 2021, X was acquainted with the defendant and they became lovers on their first date. X was about 10 years and 7 months old at the material time.
On or about 30 June 2021, at the rear staircase of the building mentioned in Count 4, the defendant took off X’s pants and licked X’s private part. The defendant then asked X to lick his penis. X complied and performed oral sex upon the defendant’s penis for a minute. The defendant then
inserted his penis into X’s vagina. The defendant was wearing a condom at the material time. This is the subject of Count 3.
On that same occasion, the defendant made 11 videos involving X during his sexual activities with her, which were child pornography. Five of them belonged to level 2, three of them belonged to level 3, and three of them belonged to level 4.
A victim impact report was sought in respect of X, but this Court was later informed that X refused to participate.
The defendant’s background and mitigation
The defendant was born in Hong Kong on 9 April 1997. He was around 23 to 24 years old at the time of the offences, and he is now 27.
The defendant studied until Form 6 and joined the workforce as a warehouse worker after graduation. I have been told that the defendant had also studied part-time and obtained a diploma at the Institute of Vocational Education whilst he worked.
Unfortunately, in around 2019, he sustained injury during work, and the relevant certificate of compensation assessment certified a 4 per cent permanent loss of earning capacity. I have been told that the lawsuit for compensation is still ongoing.
I have read various letters from the defendant’s mother, father, elder brother, girlfriend, and people in different churches. The letters speak to the defendant being remorseful for his misconduct and is willing to take responsibility for what he had done, and ask for a lenient sentence.
I have also read a letter that the defendant himself wrote this morning, indicating his understanding of the seriousness of his misconduct and acceptance of accountability, and remorse.
It is submitted by Mr Leung on behalf of the defendant that he had been very cooperative with the police during the inquiry, and voluntarily allowed the police to access his digital devices, which revealed the present offences.
In respect of Count 1, out of a total of over 12,500 photos, images, and videos retrieved from the defendant’s digital devices, it is submitted that a vast majority of them concerned adult or mature persons, and all were downloaded from the internet for the defendant’s own viewing pleasure only.
In respect of Counts 2 and 4, it is submitted that the defendant and the two respective underage girls in the two counts were his lovers. The videos were made during consensual sexual activities, the two girls were aware of the taking of the videos at the material time, and the videos were kept by the defendant for his own viewing pleasure only.
The defendant has seven previous convictions. In 2017, which was seven years ago, and when the defendant was then less than 20 years old, the defendant was convicted of three charges of unlawful sexual intercourse with a girl under the age of 16 and indecent assault, for which he was sentenced to a probation order. He was also charged with shoplifting in 2019, and loitering in both 2019 and 2021. In respect of the second loitering charge, the defendant was sentenced to 20 days’ imprisonment.
The defendant’s psychiatric and psychological report
A psychiatric and a psychological report in respect of the defendant was called for.
The defendant’s psychiatric report was unremarkable. The examining psychiatrist opined that there is no suggestion that the defendant was paedophilic.
In respect of the defendant’s psychological report, it was noted that the defendant’s two previous loitering convictions involved the defendant entering female public restrooms with the intention of taking indecent photos and videos of women. The examining psychologist opined that the defendant exhibited features of Antisocial Personality Disorder, characterised by deceitfulness, law violations, a lack of accountability, along with a history of conduct issues since childhood. In the opinion of the psychologist, the defendant showed manipulative behaviour towards immature girls, exploiting the innocence of the victims to fulfil his own sexual needs, but the psychologist did not consider that the defendant had a paedophilic disorder. The defendant’s risk of sexual reoffending was estimated to be high.
Whilst the defendant disputes some of the characterisations of him by the examining psychologist, there is clearly sufficient evidence in respect of the defendant’s background for the psychologist to conclude in the way that he did.
Consideration of sentence
I will first consider the appropriate starting points for each count.
Count 1 concerns the possession of child pornography. Among the 135 images and 222 videos that are the subject of Count 1, most of them were level 2, child pornography. However, there were still seven and 21 images and videos of level 3 and level 4 child pornography respectively.
I have made reference to the sentencing guidelines for the possession of child pornography as set out by the Court of Appeal in Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 at paragraph 17. And I have also considered the approach and observations of the Court of Appeal in HKSAR v Tsang Yuk-hei, HCMA 746/2015 at paragraphs 10 to 11.
Given the number of images and videos involved, there being no suggestion that the underage girls depicted were of particularly young age, and that the images and videos were for the defendant’s personal viewing only. I consider that a starting point of 15 months’ imprisonment to be appropriate, which is towards the lower end of the 12 to 36 months band as identified in Man Kwong Choi.
Count 2 and Count 4 concerns making child pornography. The Court of Appeal stated in HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, that although the making of child pornography is treated more seriously than mere possession, some guidance can still be taken from Man Kwong Choi, particularly in respect of the classification of the nature of the pornographic material.
The image files produced by the defendant included pornographic videos classified at level 4, which essentially recorded the defendant’s own sexual activities with A, in respect of Count 2, an underage girl whose features were compatible with girls of early puberty, and X, in respect of Count 3, who was only 10 years and 7 months old at the time. I consider that the appropriate starting points to be 2½ years’ imprisonment for each of Counts 2 and 4.
Count 3 concerns unlawful sexual intercourse with X. In HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, at paragraph 43, the Court of Appeal identified 10 factors which the court needs to take into consideration when dealing with sentencing for the offences of sexual assault on a child:
(1) the age difference between the defendant and the victim;
(2) the relationship between the defendant and the victim, including whether the defendant had taken advantage of his position to commit the offence or whether there was any breach of trust at the time;
(3) whether the defendant used threats or inducements to make the victims succumb;
(4) the number of occasions of committing the offence and the duration of the offence;
(5) whether inappropriate or unnecessary violence was involved in committing the offence;
(6) whether any suitable safety features were taken in committing the offence, whether any hazard to the health and safety of the victim and the public was caused;
(7) whether the offence had caused physical or psychological trauma to the victim;
(8) whether the offence had impact on the family members of the victim;
(9) was the defendant involved in other inappropriate behaviour, such as inviting or permitting other people to watch or take video; and
(10) whether the defendant is psychologically imbalanced or a paedophile, and the likelihood of reoffending.
The courts have repeatedly emphasised that crimes against children should receive deterrent sentences to deter similar offences, reflect the public’s abhorrence, and address the suffering of both the victim and their family. See HKSAR v Chan Ching Ho [2000] 3 HKLRD 476, at paragraph 24. As stated in HKSAR v Kong Yun Chiu [2007] 4 HKC 391 at 395, and I quote:
“It should go without saying that children are particularly vulnerable members of society...the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly. The trauma caused to a child by an indecent assault, and the long-term adverse impact, is difficult to calculate, but trauma may safely be assumed in the vast majority of cases, perhaps all. Similarly, trauma and distress, immediate and long-term, is not confined to the child. Parents of child victims will almost certainly be haunted by images of what has been done to the child, and in addition, will nurture a deep sense of guilt, either for having entrusted the child to the company of someone who breaches the trust or, in other cases, having left the child unguarded for the odd moment.”
In the present case, a number of factors are aggravating.
Firstly, X’s young age of 10 years and 7 months old.
Secondly, there is a significant age difference between the defendant, 24 years old at the time, and X. The Court of Appeal considered in HKSAR v Lai Wing Tat [2021] HKCA 1579, at paragraph 36, that that appellant’s offending was seriously aggravated by the significant age difference between himself, that is 25 years old, and his victims, that is 12 to 14 years old.
Thirdly, the defendant had previously been convicted of unlawful sexual intercourse with a girl under the age of 16 and indecent assault. Commission of the present offences show that the reoffending has become a reality rather than just a risk.
Fourthly, the defendant took photos and videos depicting sexual activities between the defendant and X, three of which were level 4.
Fifthly, although the defendant was not assessed to be a paedophile, his risk of sexual reoffending was estimated to be high.
Considering the matter in the round, in my judgment, the appropriate starting point in respect of Count 3 is 4 years’ imprisonment.
The only mitigating factor in this case is the defendant’s timely plea, for which he is entitled to one-third discount. The reduced sentences of imprisonment in respect of each count are as follows: Count 1, 10 months; Count 2, 20 months; Count 3, 32 months; Count 4, 20 months.
The offences in Counts 1, 2, and 3 were entirely separate and distinct. Counts 2 and 3 in particular involved two different underage girls. Consecutive sentences are therefore appropriate, subject to the issue of totality.
I will achieve a just total result by ordering that 16 months of the sentence on Count 2 be served consecutively to Count 3, resulting in a sentence of 48 months’ imprisonment or 4 years. Having regard to totality, I will order that the sentence on Count 1 be served concurrently to the sentences on Counts 2 and 3. In respect of Count 4, since the culpability of that count has already been taken into account in the sentence for Count 3, the sentence on Count 4 will also be served concurrently to the other sentences.
Looked at from a global perspective, this will result in a combined starting point of 6 years’ imprisonment for all the counts reduced to 4 years for the defendant’s timely plea.
I sentence you to a total term of 4 years’ imprisonment.