HKSAR v. Yau Yan Kit

DCCC171/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 171 OF 2010

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to a charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579.

2.You admitted that on 16 September 2009, at your home in Yuen Long in Hong Kong, you had in your possession child pornography, namely 17 video files, 1,734 still image files and 12,222 anime image files stored on your computer.

3.Following a report from Interpol, Luxembourg in June 2009 the police conducted investigations and found that an IP address (yours) had accessed the website on 16 April 2009 at 3 am where some child pornography material was published. After conducting a subscriber check on the IP address police officers went to your residence in Yuen Long on the evening of 16 September 2009. They were armed with a search warrant, and police officers conducted a search at your house.

4.They found a desktop computer in your bedroom. After some initial examinations some child pornographic material was found stored on the hard disk of the computer. You were arrested and cautioned by the police officer for possession of child pornography. Under caution you admitted that you downloaded the material from the Internet out of curiosity and saved it onto your hard disk after viewing.

5.The computer was seized as an exhibit, and after further examinations a total of 17 video files, 1,734 still image files and 12,222 anime image files were found stored on the hard disk, which were all child pornography. The child pornographic material involving real children was as follows. There were 1,015 photos of level 1 category, that is images depicting erotic posing with no sexual activity; 4 videos and 111 photos of level 2, which is sexual activity between children or solo masturbation by a child; 8 videos and 366 photos of level 3, that is non-penetrative sexual activity between adults and children; 5 videos and 242 photos of level 4, that is penetrative sexual activity between children and adults, or sadism or bestiality. The children depicted in all the pornographic material were aged between 1 and 13.

6.In interviews conducted by the police you admitted under caution that you started downloading child pornography from the Internet about a year before your arrest. Your mother was the subscriber of the Internet service but you were the sole user. You downloaded from the Internet all the child pornographic material found by the police on the hard disk. The children depicted in the material were all under 16, and you had never shown or forwarded the material to anyone.

7.You are aged 21 and of clear record. Your solicitor Mr Li has mitigated on your behalf for you. I have taken into account all that he has had to say. Prior to sentencing you I called for a background report, a psychologist’s report and a psychiatrist’s report. I have also taken into account what is contained in those reports when sentencing you.

8.I have also had submitted to me a letter written by your mother, and I have had read to me a letter written by yourself to me. You are living with your parents. You are the only child of the family. Your mother has asked me to give you a chance to rebuild your life, that you know you are wrong and that you have personally guaranteed that you will never look at these things again.

9.I have also heard from you that being in custody for three weeks you have learned a bitter lesson, and you have informed me through Mr Li that you have no interest in real life in children despite you looking at these pornographic child sites. As to that statement made by yourself that you have no interest in children in real life, I find it of concern as that does not gel with what you are in fact viewing on the website.

10.As seen in the psychiatrist’s report, his opinion is that despite you repeatedly denying your sexual interests in children in real life, your interest in children pornographic material is worrying. It appears that at first you said you were interested in just pornographic pictures. However, the psychiatrist noted that you admitted that 90 per cent of the saved pictures were children pornographic material, and only 10 per cent were adult pornographic material. The psychiatrist recommends that monitoring via a psychologist would be beneficial to you, that no psychiatric care is considered necessary at this juncture.

11.Again, although you say that it was only because you were curious, and it appears that that is what you have said throughout from the very beginning, and what your mother says, the psychiatrist also notes that although you say your ideal woman should be between the age of 20 to 27 you cannot explain your interest in children pornographic material.

12.The psychologist’s report also sets out detailed background upon you and notes that you had also said that you had been downloading mostly child pornography, despite you saying that you are not picky on whether it was adult or children. It is said by that psychologist that it remains possible - I stress “possible” - that you have started developing some sexual interest in children, and this might be harboured within you. Therefore, your risk of sexual re-offending in a similar offence is still present.

13.She states that the offence is likely to be related to your minimisation of negative consequences of offending behaviours, sexual indulgence, as well as maladaptive way to gratify your sexual needs. Psychological services with focus on your sexual indulgence, exposure to pornography, proper management of your sex needs and the concept of lawful behaviours might be helpful to prevent you from re-offending. The psychologist qualifies this by saying: “However, your prognosis is hinged on your motivation for change.”

14.Generally, as to your background, you have not been involved in drugs, not been in trouble before, and have been a filial son. You had lacked motivation in your studies, and therefore started work at age 15. After leaving school you had taken up various jobs, mostly in restaurants or kitchens, with the help of your mother. As your mother says in her letter as well, that she had taught you lots of skills about cooking, and you are a fine cook. It appears however that you are unable to keep your jobs for very long as you had discords with a few co-workers. You also had a very small social circle and spent most of your time at home and not having any hobbies. Of course a lot of your time was spent on the Internet.

15.For this offence of possession of child pornography the guidelines have been laid down in the case of Secretary for Justice v Man Kwong Choi, CAAR8/2007 and Secretary for Justice v Ho Yan Chu, CAAR9/2007. The date of handing down judgment was 16 July 2008. This was a case which set out how the courts should sentence in these type of cases. For this offence, the court laid down that offences under section 3, the sentence should be one of deterrence, that is for the protection of the victims of child pornography, namely the exploited children themselves, and secondly society generally.

16.In your case you were in possession of child pornography and did not distribute or publish the material. However, the courts have said that nevertheless only being in possession of child pornography, the seriousness should nevertheless not be underestimated. But for the demand of persons wanting to possess child pornography, they would not be the production, distribution or publication of it. In other words, all these various facets make significant contributions to the exploitation of vulnerable children.

17.It was said at paragraph 16 in the judgment: “Possession of child pornography should generally attract an immediate custodial sentence, unless special circumstances exist.” One such special circumstance may be that the quantity of pornographic material level 1 may be so small as to make the amount in the possession of the accused de minimis, which I say is not in your case.

18.What is stated in paragraph 16, it says: “In sentencing, one starts by having regard to the appropriate level of the relevant depictions and whether the depictions were of real children or whether they were artificially created.” In this case you had all levels of depictions, from level 1, 2, 3 and 4. They were also many depictions of real children.

19.In paragraph 17 the court lays down the suggested terms of imprisonment for each level. The most serious level is level 4, which the court says the range of custodial sentences should generally be between 12 months - even for a few images - to 36 months’ imprisonment. These are, of course, starting points for sentence after trial.

20.I have taken into account the relevant videos and photographs that you have had in each level of the depictions, and I have also taken into account the fact of an aggravating feature, which is that about the age of the children depicted. The depictions involve particularly young children, which is in this case aged 1, up to age 13. I have looked at the pictures which the prosecution has submitted to me and have a good idea of what types and levels of these depictions are made.

21.I have taken into account the fact that you are a first offender and that you are of clear record, and aged 21. I consider that a starting point after trial of 15 months’ imprisonment to be appropriate for the various levels that you have had in your possession. I also take into account the aggravating feature of the very young age of the child of 1 year particularly, and would increase that by 3 months to one of 18 months and the general depiction of the children being under 13 years of age. That is a starting point after trial of 18 months. I give you full credit for your plea of guilty, I shall reduce that term to one of 12 months, to which you are so sentenced.