HKSAR v. Chan Kin Lik

DCCC85/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.85 OF 2011

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Before: District Judge Douglas T.H. Yau

Date: 10 June 2011 at 2:33pm

Reasons for Sentence

1.The defendant pleaded guilty to 5 charges. Charge 1 is for Using a person under the age of 16 for making pornography, contrary to s.138A(1)(a) of the Crimes Ordinance, Cap.200; charge 2 for Making child pornography, contrary to s.3(1)(a) of the Prevention of Child Pornography Ordinance, Cap.579; charge 3 for Possession of child pornography, contrary to s.3(3)(a) of the same Ordinance, Cap.579; charge 4 for Criminal Intimidation, contrary to s.24 of the Crimes Ordinance, Cap200 and charge 5 for Falsely pretending to be a public officer, contrary to s22(1) of the Summary Offences Ordinance, Cap.228.

Summary of Facts

2.On 3^rd June 2010, The defendant, 36 years old, befriended Girl X who was 13 years and 8 months old by claiming to be a professional photographer and asking X to be his model for a reward of $200. X agreed and photos were taken at a nearby park. X gave her telephone number to the defendant upon his request.

3.On 9^th July 2010, the defendant telephoned X to ask her to pose for him again. X agreed.

4.On 13^th July 2010, at about 1:40pm, the defendant brought X to a guesthouse in Yau Ma Tei but the receptionist refused to check them in because X was below 18 years of age. The defendant then brought X to another hotel in Yau Ma Tei. The defendant put on a cap and mask before entering. This time they successfully checked into a room.

5.The defendant took some photos of X inside the room and then demanded X to sign a contract, telling her that she will be paid a monthly salary of $10,000 as a model. X signed on the contract as told without reading the terms.

6.The defendant then demanded X to take her clothes off, claiming that it was a term of the contract that she should follow the photographer’s instructions (Charge 1). The defendant threatened that X will be sued for breach of contract should she refuse and she will be liable to a huge sum of damages. X was scared and reluctantly complied with the defendant’s order (Charge 4).

7.After X took her T-shirt off, the defendant demanded to take measurements of her buttock, waist and breasts with a measuring tape. Some more photographs of X were taken with some showing X posing nude. X felt embarrassed and insulted.

8.After the defendant finished taking some of the photographs and videos, X had a chance to look at some of them. X demanded the defendant to delete the photos that showed her face but the defendant refused.

9.The defendant then told X that she should wait at a nearby fast food restaurant for him while he went to get the money to pay her and he left the room. X did not believe the defendant and chased after him. The defendant boarded a taxi to escape. X shouted robbery and with the help of a passer-by who noted the licence number of the taxi, X made a report to the Police.

10.The taxi was intercepted by the Police shortly thereafter at the junction of Mody and Bristol Road with the defendant on board. The defendant was arrested and then granted Police bail later on.

11.The defendant’s rucksack was seized and searched and the offending articles as set out in charges 2 and 3 were found on the relevant storage devices. All the images referred to charges 1, 2 and 3 depict erotic posing with no sexual activity.

12.On 3^rd and 4^th November 2010, about 4 months after the said hotel photo taking incident,  the defendant approached Girl Y twice in the staircases of the building where Y resided, trying to acquaint himself with Y but in vain. The defendant was not a resident of the building. Girl Y was 10 years and 2 months old at the time.

13.On 8^th November 2010, at 4:30pm, the defendant approached Y in the same staircase of the building again. The defendant claimed to Y that he was a Police officer and that he suspected Y of stealing something from her schoolmates (charge 5). The defendant demanded Y to follow him to the rooftop of the building for a body search. Y asked the defendant why they had to go to the roof top for the body search whereupon the defendant responded by saying “Shut up, shut up” repeatedly. Girl Y pretended to be following the defendant up to the rooftop but upon reaching her home she suddenly opened her door with the key and went inside. The defendant immediately rushed downstairs. The case was reported to the Police immediately.

14.On 11^th November 2010, the defendant was arrested in the staircase of the same building. The defendant committed charge 5 whilst on Police bail for charges 1-4.

Previous convictions

15.The defendant has a clear record.

Mitigation

16.A “Note for Mitigation” was very helpfully prepared by Mr. Enzo Chow, counsel for the defendant. I need not repeat the full contents here.

17.The defendant is 37, married but without children. The defendant’s father is 83 and is suffering from cancer.

18.The defendant was educated up to university level. He worked as a Police officer between 1999 and 2008. He worked hard to better himself and was called to the Bar in 2000. He left the Police force in 2008 to become a Tribunal Officer of the Labour Tribunal. Various letters of mitigation were handed up in support of a lenient sentence for the defendant.

19.Because of the indication in Mr. Chow’s submission that the defendant suffers from psychiatric illness, 2 psychiatrist reports and 1 psychologist report was ordered to be prepared on the defendant prior to sentence. While it is confirmed that the defendant does suffer from Bipolar Affective Disorder, in-patient treatment is considered unnecessary. He is however recommended to continue with out-patient treatment. It is the psychiatrists’ opinion that the defendant is fit to serve any sentence that this Court deems appropriate to impose.

20.Dr. Robyn Ho, one of the psychiatrists, is unclear whether the defendant has paedophilic tendency as the defendant was evasive about his offences.

21.Clinical Psychologist Dr. J. Chan is also of the view that she cannot ascertain the extent of the defendant’s deviant sexual interest as a result of the defendant’s defensive attitude during the assessment. Dr. Chan is however able to say that there was no causal relationship between the defendant’s mental illness and his commission of the offences. The risk of re-offending is in the low to moderate range.

Sentencing Authorities

22.The Court of Appeal in the case of Secretary for Justice v Man Kwong Choi, CAAR 8/2007 laid down the guidelines for sentencing in relation to offences of “Possession of child pornography”. This is charge 3 in our present case. It is not disputed that the level of seriousness of the material in our present case is that of Level 1 within the Man Kwong Choi classification.

“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) : -

(1) Level 1

The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.”

23.In relation to the offence of “Making Child Pornography”, in the case of HKSAR v Chow Yuen Fai, CACC 392/2008, the Court of Appeal stated that the classification of the levels of child pornography in Man Kwong Choi applied equally to this offence:

“The making of child pornography offences (Counts 8, 11 and 13)

47. As reflected in the maximum sentence for these offences, the making of child pornography is treated more seriously than mere possession (see paragraph 24 above). There are, however, few previous cases for this offence, perhaps even none (we were not referred to any), but some guidance can be taken from Man Kwong Choi. The classification of the levels of child pornography in that case apply equally to an offence committed under section 3(1) of POCPO.

48. The Judge adopted a starting point of 2 years for each of the three offences of making child pornography (before discounting them to 1 year 4 months’ imprisonment). He also made them concurrent with the buggery and indecent assault offences with which they were associated.

49. Given that these offences can, in the present case, only be viewed with the corresponding offences of buggery and indecent assault (and, for those offences, the fact that a record was made has already been taken into account), we would not disturb the Judge’s sentences and approach. In another case, we would not have disturbed a sentence that adopted as a starting point a term of 3 years’ imprisonment. This would be even taking into account the fact that the Man Kwong Choi guidelines may not, strictly speaking, be applicable[1].”

24.There does not appear to be, and I was not referred to any, authorities on sentencing for the offence of Using a person under 16 to make pornography. This offence carries a maximum sentence of a fine of $3,000,000 and imprisonment for 10 years.

25.The maximum sentence for the offence of Making Child Pornography is a fine of $2,000,000 and imprisonment for 8 years.  The maximum sentence for the offence of Possession of Child Pornography is a fine of $1,000,000 and imprisonment for 5 years.

26.The maximum sentence for the offence of Criminal Intimidation is imprisonment for 5 years.

27.The maximum sentence for Falsely Pretending to be a public officer is a fine of $1,000 or imprisonment for 6 months.

Sentence

28.I have viewed the photographs and images lifted from the videos in relation to charges 1, 2 and 3. I find that they are within Level 1 of the Man Kwong Choi classification.

29.A victim impact report was ordered to be prepared on Girl X. A similar report was not call to be prepared on Girl Y because I do not find it will have any bearing on the sentence.

30.It is the psychologist’s finding that Girl X, who is now in her adolescence, manifests significant symptoms of post-traumatic stress including re-experiencing of abuse incidents, avoidance of cues related to the abuse incidents and hyper-arousal. She shows emotional distress such as anxiety, anger and concentration problems after the incident. She has become more withdrawn and is losing her motivation. She has lost confidence in relating with others as she finds it difficult to trust others anymore. The incident has negative impact on her emotionally, behaviorally and interpersonally. It is recommended that she receives psychological counselling to deal with her post-traumatic symptoms, to facilitate her expression of feeling, re-building trust towards adults and to learn proper ways of self-protection.

31.Of the 5 charges that the defendant had pleaded guilty to, the using a person under 16 to make pornography is the most serious one. In relation to charges 2 and 3, as a result of the Level 1 Classification of the child pornography involved and the small amount of photos being made by the defendant and found in his possession, they are not the more serious offence of its kind.

32.Having said that, the defendant had exploited the trusting nature of X to get her to pose for him in the park first. Having gained her trust, he then enticed her with monetary reward into going with him to a hotel room to take photos. The defendant then tricked X into signing a so called contract and then exploited her naivety to intimidate her into succumbing to his demand of taking her clothes off to pose for him. Having taken the photos, he went back on his promise and fled without paying. But for the alacrity of the passer-by, the defendant might very well have gotten away.

33.Charge 5 was committed by the defendant whilst on bail for charges 1-4. The victim was a 10 year old girl. The circumstances of the commission of this offence indicate a sinister motive behind. Fortunately, we have a very clever 10 year old here and no further harm was done. Also for that reason, the defendant is charged with the lesser offence of Falsely pretending to be a public officer which carries a maximum sentence of just 6 months’ imprisonment.

34.The sentence that this court impose will have to accurately reflect the repulsiveness it feels towards the acts of the defendant, but at the same time recognize the fact that the pornographic materials involved are probably at the lowest level of seriousness for offences of its kind. 

35.The court also needs to send out the message that the court will not hesitate to protect those who may not be able to protect themselves. Anyone who chooses to exploit the vulnerability of young children will have to be prepared to be severely punished.

36.Bearing in mind all the circumstances of the case, I will sentence as follows:

Charge 1:

37.I find that the system of level classification of Man Kwong Choi is equally applicable to an offence under s.138A(1)(a) of the Crimes Ordinance. The more serious the level of pornography the child is used to depict, the more serious the punishment should be.

38.Bearing in mind the maximum sentence of this offence and bearing in mind the low level of pornography involved, I will adopt a starting point of 3 years’ imprisonment, reducing it by one third in recognition of the defendant’s guilty plea and sentence him to 2 years’ imprisonment.

Charge 2:

39.Bearing in mind the maximum sentence of this offence and bearing in mind the low level of pornography involved, I will adopt a starting point of 2 years’ imprisonment, reducing it by one-third in recognition of the defendant’s guilty plea and sentence him to 16 months’ imprisonment.

Charge 3:

40.Bearing in mind the maximum sentence of this offence and bearing in mind the low level of pornography involved as well as the small quantity of pornography involved,  I will adopt a starting point of 3 weeks’ imprisonment, reducing it by one-third in recognition of the defendant’s guilty plea and sentence him to 2 weeks’ imprisonment.

Charge 4:

41.I find that the fact that the defendant was trying to intimidate Girl X to take her clothes off so that he could take naked photos of her a despicable act. I will adopt a starting point of 3 years’ imprisonment, reducing it to 2 years in recognition of his guilty plea and sentence the defendant to 2 years’ imprisonment.

Charge 5:

42.I find that the only reason why the defendant was imposing a public officer was to get Girl Y up to the rooftop so as to take advantage of her. I cannot think of a more sinister way of committing this offence. I will adopt the maximum sentence of 6 months’ imprisonment as the starting point and reduce it to 4 months’ imprisonment in recognition of the defendant’s guilty plea.

Totality

43.Charges 1, 2, 3 and 4 all arose out of the same incident and are intricately linked. I will order that the sentences in charges 1, 2 and 3 be served wholly concurrently, whereas 2 months of charge 4 be served consecutively.

44.Charge 5 was committed whilst the defendant was on bail for charges 1-4, I order that the sentence in charge 5 to be served wholly consecutively to the sentences of charges 1-4.

45.The defendant is therefore sentenced to a total of 2 years and 6 months’ imprisonment.

[1] The offence in Chow Yuen Fai took place before the Man Kwong Choi guidelines’ application date.

Please refer to CACC89/2013 for the relevant appeal(s) to the Court of Appeal.