HKSAR v. Lee Man Ho

DCCC 32/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 32 OF 2013

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to a charge of possession of child pornography.  On 12 March 2012 the police executed a search warrant against his home in a public housing unit in Tuen Mun, N.T.  In a computer inside his bedroom were found 84 video clips depicting child pornography. 

2.Under caution the defendant said:

(1) He had downloaded the pornographic video clips, which he would watch when free;

(2) He had opened them to read after downloading;

(3) He believed the persons depicted in the video clips were under the age of 16;

(4) He had not deleted the downloaded files.

3.The police stored the said video clips on recordable discs to be kept as exhibits. 

Classification of the level of child pornography

4.The police viewed the contents of the said video clips and still images and suggested the following classification, to which the defence has no objection:

Classification	Video clips (net number after excluding duplicates)
Level 1	13  (13)
Level 2	11  (11)
Level 3	20  (18)
Level 4	40  (32)
Total	84  (74)

5.The Court of Appeal in Secretary for Justice v. Man Kwong Choi (萬廣財) [2008] 5 HKLRD 519 has identified the following classification of child pornography of increasing severity:

(1) Level 1: images depicting erotic posing with no sexual activity;

(2) Level 2: sexual activity between children or solo masturbation by a child;

(3) Level 3: non-penetrative sexual activity between adults and children;

(4) Level 4: penetrative sexual activity between children and adults, or sadism or bestiality.

6.At least 40 of the 84 video clips have file names containing words such as “10 years old”, “primary school 5”, “primary school student”, “under age”.  The boys and the girls apparently fit one or more of the aforesaid descriptions, as the case may be.  All of the video clips were of real children, who apparent ages were between 10 and 15.  

7.In one of the video clips the girl’s hands were tied up from behind by cellulose tapes.  Her mouth was gagged by strings. A male used clothes clips to pinch the nipples of the girl.  Another male used a device to force open, and pour, a raw egg into her genitals.  After sexual intercourse, some fluid from her genitals came out, which was collected by the male, who forced the girl to drink.  Another male used a tool to force open, and piss into, the genitals of the girl. 

8.In another video clip, a girl was tied up by strings over her body and hands and also hung from the ceiling.  Later she was tied up on a chair. 

Personal background and mitigation

9.The defendant is 31 years of age, a web page designer before arrest.  He had completed courses in an art and design school, then the Open University of Hong Kong.  He lives with his mother.  He has a clear record. 

10.His solicitor submits that in respect of some child pornography materials he had downloaded, he had the opportunity to watch and decided to keep them afterwards.  In respect of other child pornography materials, he had downloaded them together with other adult clips by eMule. He knew he got child pornography among them.  He would decide what to do with the child pornography later.  

11.As part of the mitigation, his solicitor says that there is little risk of re-offending.  I call for 2 clinical psychologists’ reports on this issue.  The reports see him as a social loner with a low self-esteem.  He has no regular sexual relationship and has to resort to prostitution and masturbation by viewing the internet.  On the positive side, both reports suggest that there is no indication of paedophilic tendency and his risk of re-offending can be regarded as low to moderate.  On the negative side, he has not clearly explained why he had used child-specific key words to search for pornographic materials.  He has shown no empathy to the child victims in the video clips either. 

12.Psychological treatment focusing on his interpersonal skills, distorted attitude and prevention of sexual re-offending is recommended. 

Sentencing considerations

13.The statutory maximum is imprisonment for 5 years and a fine of $1,000,000 on indictment.  According to Man Kwong Choi (above), the sentence for this offence will focus on the deterrence to protect children who are subject to sexual exploitation and moral depravity.  Where the number of video clips, especially Level 4 materials, is large, the sentence will generally be substantial.  As a general guidance, the Court of Appeal suggested a range of between 12 months for a few images and 36 months for a large number of images.  The defendant there possessed 69 video clips at Level 4 and 119 video clips at Level 3 (CAAR 8/2007).  The actual sentence, based on the plea of guilty, would have been increased from a suspended sentence of 6 months to 2 years’ immediate imprisonment but for its being a review by the prosecution, the Court of Appeal decided not to alter the original sentence.  

Sentencing present defendant

14.I take a starting point of 30 months.  I reduce it to 20 months due to the plea of guilty.  There are no other mitigating factors.  This is his sentence.  I leave it to the Correctional Services Department in its regular regime to cater for his psychological treatment.