HKSAR v. Wong Sung Yiu

DCCC 197/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 197 OF 2012

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REASONS FOR SENTENCE

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

2.At 7.00am on 24 March 2011 a team of police officers visited the home of the defendant having received information that someone there was downloading child pornography. The defendant was not at home. His mother and two young nephews were there. The police asked his mother to inform the defendant to return home. Upon his return he was arrested for possession of child pornography and he immediately admitted that there was child pornography on his computer which he had downloaded some time ago.

3.A preliminary examination of the defendant’s desktop computer revealed footage of child pornography and the computer was seized.

4.When later interviewed he said that he had downloaded some 50 pornagraphic video clips from the internet using “Foxy”. He said he stored the videos in a folder name “Bitcomet” . He admitted that some of the videos depicted under-aged children of around 12-13 years of age. The defendant said that the video clips were for his own viewing and not shared with other.

5.Examination of the defendant’s computer and optical disc revealed 237 video clips containing child pornography. I was most concerned that 148 of the video clips were found to contain pornographic material of Level 4 category. 7 were found to relate to children below the age of 5 and 189 to children aged between 5 and 10. The videos showed inter alia sexual intercourse and oral sex between adults and girls under 5; oral sex and sexual intercourse between boys aged 7-8; anal sex between male adults and girls aged 8-10; a dog performing oral sex on a 9 year-old girl.

6.The defendant is 25 years of age and has a clear record. He lives in modest accommodation with his mother, elder sister and her two sons aged. His parents divorced when he was 18. He finished his secondary school with poor academic results and continued his studies at the Institute of Vocational Education. He quitted there after two years because of financial problems. He has worked as a decoration and delivery worker previously and is currently employed as a waiter in a hotel. A glowing testimonial from his employer was submitted to the court. There was also a letter from a District Councilor who described the defendant as a diligent man who had done much voluntary work for the community. Counsel said that his mother is most concerned for her son and said that he has been the main breadwinner for the family.

7.I had adjourned the case previously for psychiatric and psychological reports. The defendant is described as being heterosexual in orientation and he has had a normal relationship with his current girlfriend for the last three years. They opine that the defendant had a stable intimate relationship and that there was no clear evidence suggesting deviant sexual interest.

8.The defendant told the medical experts that he started to download adult pornographic videos through an online software provider called “Foxy” around three years ago. The defendant told them that he usually downloaded multiple adult videos at one time and that some child pornographic movies were downloaded automatically at the same time. The defendant said that he was aware of the child movies and took no action to delete them as he proposed to format the hardware later. He told the psychiatrist that he did not watch them. The defendant denied viewing the child pornography for sexual purposes and he denied any paedophilic interest. I noted that when the defendant was spoken to by the police he said that some of the videos depicted children of around 12-13, that they were for his own viewing and he had never shared them with others. It was also put forward in mitigation when he first appeared before the court that they were for his own viewing and not shared.

9.I was informed by the prosecution that 555 video clips relating to adult videos lasting 436 hours were found on the defendant’s desktop computer and optical disk. The 237 video clips relating to child pornography lasted 74.5 hours. This is a significant proportion of the pornographic material found and much of the child pornography was in the most serious category. There was no evidence of any attempt by the defendant to delete such material. It was clear that the material to be downloaded did relate to child pornography. Persons downloading such material play a significant part in enabling this pernicious trade to flourish. This could only mean that more children, including very young children, would be subject to abuse to provide films for this market.

10.I took as my guide on sentence the case of HKSAR v. Man Kwong Choi [2008] 5 HKLRD 519 which states that the range of custodial sentence should be 12 month to 36 months even for a few images possessed by a person of clear record.

11.I took into account that the material was for his own use and was not organized into any form of library.

12.Applying the principles and guidelines in Man Kwong Choi, without repeating them and taking into account, inter alia, the huge number of pornographic items, their nature, the ages of the children involved, the personal circumstances of the defendant, his clear record, his cooperation with the police, I took the view that the appropriate starting point for sentence is a sentence of 30 months imprisonment which I will reduce by one third to 20 months imprisonment to reflect his guilty plea.