Secretary for Justice v. Man Kwong Choi
Read the full judgment text of CAAR 8/2007 on BabelCite. This Court of Appeal judgment was delivered on 16 July 2008 before Ma CJHC, Stuart-Moore VP & Stock JA.
Criminal law – Prevention of Child Pornography Ordinance (Cap.579) – possession of child pornography – sentencing guidelines – classification of pornographic images – deterrence – manifestly inadequate sentence – review of sentence – prospective application of guidelines – District Court jurisdiction – Court of Appeal guidelines for sentencing under s.3(3) of the Prevention of Child Pornography Ordinance, Cap.579, which provides for a maximum of 5 years' imprisonment on indictment and 2 years on summary conviction for possession of child pornography – two applications for review of sentence joined – first respondent (CAAR 8/2007) sentenced to 6 months' imprisonment suspended for 2 years and a fine of $20,000 for possession of 1,157 still images and 245 video files covering all classification levels, including 510 still images and 170 video files showing non-penetrative or penetrative activity between adults and children – children depicted aged 5 to 12 – previous conviction for indecent assault on a 12-year-old girl in 1998 – second respondent (CAAR 9/2007) sentenced to 200 hours of community service for possession of 8,290 photographs and 205 video files, the majority at Level 1 but with significant numbers at Levels 2 to 4, involving children aged 0 to 15 with 634 images depicting children with adults – both cases dealt with in the Magistrates' Court – previous inconsistency in sentencing for this offence – issue whether possession of child pornography should generally attract an immediate custodial sentence – held yes, an immediate custodial sentence should generally be imposed unless special circumstances exist – a small quantity of Level 1 material may be de minimis – PCPO aims principally to protect children from exploitation and abuse, with deterrence as the main sentencing factor – harm to children includes degradation, dehumanisation, trauma, loss of dignity, and the encouragement of paedophilia – ready availability through the internet facilitates dissemination – court adopted a four-level classification based on R v Mark David Oliver and Others [2003] 2 Cr App R 64, with modification merging penetrative activity and sadism/bestiality – Level 1: erotic posing with no sexual activity – Level 2: sexual activity between children or solo masturbation by a child – Level 3: non-penetrative sexual activity between adults and children – Level 4: penetrative sexual activity between children and adults, or sadism or bestiality – sentencing guidelines for first-time offenders after trial – Level 1: non-custodial options possible for up to 20 images, otherwise 1 to 6 months – Level 2: up to 9 months – Level 3: 6 to 12 months – Level 4: 12 to 36 months – timely guilty plea is the principal mitigating factor – aggravating factors include previous similar offences, very young children, intention to disseminate, and large numbers of images – application of guidelines to the first respondent would have warranted 3 years' imprisonment after trial in the District Court – application to the second respondent, who was under 21 at conviction, would have warranted a Training Centre order, or 2 years' imprisonment if over 21 – both applications for review allowed, sentences found to be manifestly inadequate – however, sentences not increased as the new guidelines apply only prospectively to offences committed after the date of judgment – recommendation that future prosecutions of this gravity should generally be in the District Court.
Legal issues: Sentencing approach for possession of child pornography under s.3(3) PCPO · Classification system and sentencing ranges for child pornography · Prospective application of new sentencing guidelines
Outcome: Both applications for review of sentence allowed; the sentences imposed on each respondent were found to be manifestly inadequate. However, the sentences were not increased because the new sentencing guidelines apply only prospectively to offences committed after the date of judgment.
Cited by 114 cases
|
CAAR 8/2007 & CAAR 9/2007 CAAR 8/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATION FOR REVIEW NO. 8 OF 2007 (ON APPEAL FROM FLCC NO. 1699 OF 2007) ----------------------
---------------------- CAAR 9/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATION FOR REVIEW NO. 9 OF 2007 (ON APPEAL FROM STCC NO. 4972 OF 2007) ----------------------
---------------------- Before : Hon Ma CJHC, Stuart-Moore VP & Stock JA in Court Date of Hearing : 18 March 2008 Date of Handing Down Judgment : 16 July 2008 ---------------------- J U D G M E N T ---------------------- Hon Ma CJHC (giving the judgment of the Court) : Introduction 1.The Prevention of Child Pornography Ordinance, Cap.579 (“the PCPO”) was enacted to deal with the problems associated with child pornography. We are in these applications for review concerned with the appropriate sentences for the offence of possession of child pornography. Section 3(3) of the PCPO states : -
2.Hitherto, the courts have not been consistent in sentencing for this offence. Sentences have varied between terms of imprisonment, suspended sentences, fines, probation and commonly, community service orders. 3.The two cases that have led to the reviews of sentence provide fairly typical examples : the Respondent in CAAR 8/2007 was sentenced to 6 months’ imprisonment suspended for 2 years and a fine of $20,000; the Respondent in CAAR 9/2007 was sentenced to 200 hours of community service. Both cases were dealt with in the Magistrates Court. We shall go into their cases in more detail later. It suffices for now merely to record that at the conclusion of the hearing before us, we indicated that in any event, we would not be disturbing the sentences the Respondents received, in view of the fact that they appeared to have been sentenced under what might loosely be called the prevailing sentencing practice. Classification of child pornography 4.The PCPO (in section 2) defines child pornography and pornographic depiction in the following way : - “ ‘child pornography’ (兒童色情物品) means -
A child is a person under the age of 16. 5.The pornographic depiction of children covers a fairly broad spectrum. We have found useful the following classification levels adopted in England for the purposes of sentencing (see R v Mark David Oliver and Others [2003] 2 Cr App R 64) : -
6.These classification levels were used by the prosecution in both of the present cases : -
7.While finding the Oliver classification useful, we would prefer to adopt the following four classification levels instead (the reason being that we see little difference between Levels 4 and 5 in the Oliver classification) : -
Relevant considerations in sentencing for offences under section 3(3) of the PCPO 8.Section 3 of the PCPO creates four categories of offences relating to child pornography : -
9.The aim of the PCPO is principally the protection of children from being exploited and abused for the purpose of pornography. The exploitation is of the worst kind : children, many of them are well under the age of 16, are made to pose or be filmed while exposing their genitals, anal region and other private parts; children are depicted in the most adult of sexual activity and conduct; children are depicted in states of distress; even sadism and bestiality are often shown. 10.We have been, in these reviews, provided with some of the images found in the possession of the Respondents. They are nothing short of disgusting and demonstrate a depravity that causes revulsion, and, within society, we are sure they would be regarded as simply and totally unacceptable. Words fail to describe the sense of revulsion, which is to be experienced from viewing these images. In this regard, we lay emphasis on 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. 11.As can be seen from the debates in the Legislative Council preceding the introduction of the PCPO, its roots lie in Article 34 of the United Nations Convention on the Rights of the Child (which applies to Hong Kong) protecting children against all forms of sexual exploitation and abuse. Article 34 states : -
12.From the above, it can instantly be seen that the main aspect relevant to sentencing for offences under section 3 of the PCPO will be one of deterrence. This has two facets which have to be considered : first (and the more important), the protection of the victims of child pornography, namely the exploited children themselves; secondly, society generally. 13.The same factors which point to the necessity of legislation to deal with child pornography are also relevant when considering the deterrence element we have identified above. Here, we have found of guidance the decision of the Supreme Court of Canada in R v Sharpe (2001) 150 CCC (3d) 321, particularly the passages at paragraphs 28, 86-92, 158-165, 199-209. There, the court was faced with a challenge to legislation prohibiting the possession of child pornography on the basis of an unjustifiable restriction of the freedom of expression. The Supreme Court held that such legislation was constitutional. 14.The following considerations are relevant : -
15.It is with the above considerations in mind that we are of the view that the deterrence factor becomes particularly significant when sentencing for the offence of possession of child pornography. 16.In our view, possession of child pornography should generally attract an immediate custodial sentence unless special circumstances exist. One such circumstance may be that the quantity of pornographic material at Level 1 (for the classification levels see paragraph 7 above) may be so small as to make the amount in the possession of the accused de minimis. In sentencing, one starts by having regard to the appropriate level of the relevant depictions (this can be a photograph, film, computer-generated image or any other visual depiction). Also relevant would be whether the depictions were of real children or whether they were artificially created (see Oliver at paragraph 15). In the latter respect, obviously no real persons would be involved (unless they were based on real children) but it would be important to consider all the circumstances, such as whether the depictions might or would fall into the hands of other people. The sentencer will of course take into account all relevant factors. Some factors in mitigation or aggravation are set out below. Guidelines 17.We have in mind the following guidelines appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children) : -
18.The four levels of sentence set out in the previous paragraph provide starting points for sentence after trial. As in any other case, there may be mitigating or aggravating factors that will have to be taken into account. 19.The principal mitigating factor will be a timely plea of guilty but the usual principles of sentencing will otherwise apply. 20.Aggravating features would include the following : -
21.It is important to stress that we are, in the two cases now before us, solely concerned with offences of possession of child pornography. Higher maximum sentences are provided under section 3(1) and (2) of the PCPO where more than mere possession is involved. The principles as applied to the facts in the present reviews 22.We have earlier indicated that in any event we would not be disturbing the sentences passed against the two Respondents in the present reviews. It might, however, be useful to indicate what sentences we would have had in mind in cases like theirs if the above guidelines had been applicable. 23.In the case of the Respondent in CAAR 8/2007, aged 31 at the time of sentencing, we have set out the number of images and the applicable levels which formed the subject-matter of the charge against him (see paragraph 6(1) above). The following additional facts are also relevant : -
24.The quantity of child pornography in CAAR 8/2007 was large. There were also many images in Levels 3 and 4. Given this and the other factors set out above, we would have thought that an immediate sentence of 3 years’ imprisonment would have been appropriate after trial in the District Court. We do not consider that a case of this gravity should have been tried in the Magistrates Court where the maximum sentence would have been 2 years, albeit there would of course have been a reduction by one-third on account of the guilty plea. 25.The following facts are relevant to the Respondent in CAAR 9/2007 aged 20 at the time he was sentenced (the images and their levels are set out in paragraph 6(2) above) : -
26.In the case of the Respondent in CAAR 9/2007, we are of the view that as he was under 21 when he was convicted, and assuming that a Training Centre report had certified him to be a suitable candidate, a Training Centre order would have been appropriate. However, if he had attained the age of 21 when he was convicted, a sentence of 2 years’ imprisonment would have been appropriate. Postscript 27.The facts in the two reviews were plainly not the worst that can come before the courts, although they were very serious. The downloaded images were, after all, only for the personal use of the Respondents. If the images had been intended for publication, distribution or sale, the sentences would have been significantly higher. Nevertheless, in our view the facts in the two reviews were extremely serious. In future, we would recommend, based on similar factual situations, that prosecutions of offences of this gravity should take place in the District Court, particularly where, as seen in CAAR 8/2007, there has been a previous conviction for an offence involving a child. 28.It is possible that some may regard the above guidelines as on the harsh side. However, given the nature of the offence, they need to be. While some may argue that in the end, the only people harmed are those who possess this sort of material in the privacy of their homes, this is much too narrow a view. The courts are obliged to take into account broader considerations, the main one here being the protection of vulnerable children. 29.For the reasons we have given, we shall allow both applications for a review. The sentences in each case were manifestly inadequate. However, the guidelines we have given, which will in future lead to considerably increased sentences for offences of this kind, can only apply to offences committed after this judgment has been given. We do not, therefore, as we have indicated, propose to increase the sentences imposed on the Respondents.
CAAR 8/2007 Mr I Grenville Cross, SC, DPP, Ms Chan Wing Han Agnes & Ms Lam Wing Sai Vinci of the Department of Justice for the Applicant Mr C S Fu, instructed by Messrs Andrew Chan & Co for the Respondent CAAR 9/2007 Mr I Grenville Cross, SC, DPP, Ms Chan Wing Han Agnes & Ms Lam Wing Sai Vinci of the Department of Justice for the Applicant Mr John McNamara, instructed by Messrs Chan & Tsu for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other judgments that cite this case
Further hearings and rulings under CAAR 8/2007