HKSAR v. Choy Ka Leung

DCCC 405/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 405 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty before me to one charge of possessing child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579, namely data stored in a form that is capable of conversion into 2,457 photographs and 157 video clips.

2.The facts admitted by the defendant reveal that police investigation disclosed that someone at Room 3302B, King Yung House, King Lam Estate, No 38 Po Lam Road North, Tseung Kwan O, had downloaded suspected child pornography from the internet.  These premises were ‘single person unit’ premises and the defendant was the registered tenant of the said premises.  At around 9:34 pm on 3 July 2010, a team of police officers visited the defendant’s residence.  The defendant was at home at the material time.  A house search was conducted in the defendant’s presence, and computers, discs and other storage devices were found.  A preliminary check of the computers revealed suspected child pornography in one of the computers.  The defendant was arrested and cautioned, and indicated he understood but had nothing to say.  Upon examination of the seized computers, discs and storage devices, child pornography in the form of 2,457  photographs and 157 video clips were found.  The said photographs and video clips featured different persons under the age of 16 years with the following categorization:

(a) Level 1, being images depicting erotic posing with no sexual activity – 1,887 photos and 67 video clips;

(b) Level 2, being images depicting sexual activity between children or solo masturbation by a child – 95 photos and 44 video clips;

(c) Level 3, being images depicting non-penetrative sexual activity between adults and children – 330 photos and 19 video clips; and

(d) Level 4, being images depicting penetrative sexual activity between children and adults, or sadism or bestiality – 145 photos and 27 video clips.

3.A photo album of the photographs were submitted and viewed by me, being the photographs of the child pornography in question.  The children that can be seen are all quite young, and the fear and discomfort in the faces of the children on some of the photos is evident, eg action 0054 on page 77 of the photo album.  The young age of the children in the child pornography, as well as how the children are depicted, and the way they are posed eg on page 162, where there are photos of young children tied up, or on page 174, a child in a cage, in my view are aggravating features.

4.After hearing counsel in mitigation, I adjourned sentence, calling for background, psychiatric and psychologist reports on the defendant, remanding the defendant in custody.  Those reports are now before me.  No issue has been taken on their contents.  I have before me too the psychiatric report dated 20 July 2012 on the defendant prepared by Dr Tsang Fan Kwong after he had seen the defendant on 10 July 2012, as well as letters from the defendant’s family, friends and colleagues, and I have considered the contents of these as well as all that has been urged upon me in mitigation by counsel on behalf of the defendant.

5.The two government psychiatrists both opine that the defendant could have some adjustment problems related to the stress from the present proceedings but he does not suffer from any psychiatric illness and no psychiatric intervention is required.  Dr Tsang opined that the defendant was not a paedophile, and that the defendant is likely suffering from major depressive disorder of mild to moderate severity.  The psychologist opined that the relationship between his possession of child pornography and his sexual interest in children remained unclear at the time of assessment in view of his strong denial of such, and viewed that his risk of re-offending was not impressed to be high.

6.The defendant is now aged 35 years and of previous clear record.  He has been employed since 2008 in the Census and Statistics Department.  His supervisor and his colleagues speak highly of him, and they, as well as his family and friends, have all sought leniency on behalf of the defendant.  The defendant’s background is set out in great detail in all the reports before me and I do not intend to rehearse the contents herein.

7.In Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, the Court of Appeal set out the four levels of child pornography.  Here, the child pornography in question are at all levels, and although the majority is at level 1, the quantity of level 4 child pornography, depicting penetrative sexual activity between children and adults, or sadism or bestiality, cannot be said to be small. 

8.The courts in Hong Kong take a serious view of those who possess child pornography and they have said that the main aspect relevant to sentence in this sort of case is deterrence, for the protection of the victims of child pornography and society generally.

9.Here, the defendant was in possession of child pornography but did not distribute or publish the materials.  But the courts have said that the seriousness of being in possession of child pornography should not be underestimated.  But for the demand of persons wanting to possess child pornography, there would not be the production, distribution or publication of it.

10.In paragraph 16 of Secretary for Justice v Man Kwong Choi, supra, Ma, CHJC as he then was, said that possession of child pornography should generally attract an immediate custodial sentence unless special circumstances exist. For level 4 cases, custodial sentences should generally be from 12 months, even for a few images, to 36 months.

11.When interviewed for the reports, the defendant expressed his remorse, but claimed that many images were downloaded into his hard drive as he had not switched off his computer, and he had failed to properly manage what had been downloaded.  Clearly the defendant is trying to minimize his culpability in possession of such materials.

12.I consider the appropriate starting point to be one of 3 years’ imprisonment. Although the defendant was arrested in July 2010, he was not charged until 19 April 2012 – it is evident from the reports before me that this has caused great stress to the defendant.  The prosecution submit that in light of the quantity of materials, time was taken to compile the materials and to obtain a report from the forensic pathologist.  The defence do not suggest undue delay on the part of the prosecution.  However, I am prepared to reduce the starting point to 33 months to reflect the stress the defendant would have been under with the matter hanging over him.  I can see no other factors to warrant any further reduction.  The greatest mitigation is the defendant’s plea, for which he is entitled to the usual one-third discount.  The defendant is sentenced to 22 months’ imprisonment.

13.In my view, there are no factors to warrant my suspending this sentence.

Please refer to CACC365/2012 for the relevant appeal(s) to the Court of Appeal.