HKSAR v. Hui Wai Fung
Read the full judgment text of DCCC 164/2014 on BabelCite. This District Court judgment was delivered on 7 May 2014.
1. The defendant, Hui Wai Fung (male)(aged 24), pleaded guilty to a single charge of “Possession of child pornography”, contrary to Section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.
Cites 2 cases
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DCCC 164/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 164 OF 2014 ----------------------------
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---------------------------------------- REASONS FOR SENTNENCE ---------------------------------------- The charge 1.The defendant, Hui Wai Fung (male)(aged 24), pleaded guilty to a single charge of “Possession of child pornography”, contrary to Section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579. The Facts 2.Acting on the information that the defendant had downloaded suspected child pornography from the Internet, the police executed a search warrant and searched his residence in Fu Heng Estate, Tai Po on 15 August 2013 in his presence. 3.Upon preliminary examination against the defendant’s personal computer, the police found 10 records of child pornographic videos, including masturbation, anal and oral sex between children (boys) and adults. 4.Upon further examination by the police, there were 4,748 photos and 445 video clips of child pornography stored in the hard disk of the personal computer, and they were grouped under the following categorisation:-
Defendant’s Background and Mitigation 5.The defendant is single with a clear record. He has a Form 5 education level. He had been working as a computer technician and later as a salesperson at a 7-Eleven convenience store, earning a monthly income of HK$7,500. He lives together with his parents and his twin elder brother in a public housing estate in Tai Po. 6.Mr Roderick Yeung, his solicitor, stressed that the defendant is now very remorseful and regretted what he has done and also brought suffering to his family members. 7.The defendant had promised to receive psychological treatment during and after serving his sentence and, because of this, Mr Yeung submitted that the chance of his re-offending is low. 8.Mr Yeung told the court that the defendant had downloaded the pornographic material from the Internet for his self-use and there has never been any distribution or publication of those material. 9.Mr Yeung pointed out that the defendant had made full confession to the police after his arrest and pleaded guilty to the court therefore saving the court’s time. 10.All in all, he urged the court to be as lenient to the defendant as possible. 11.I have adjourned the sentence for a psychological report for the defendant. This morning, I have the benefit of reading the report, the contents of which were fully accepted by the defendant. 12.Mr Yeung also had further submitted some letters of mitigation written by the defendant, his sister and his ex-employer. 13.I am not going to refer to the content of each letter, suffice it to say the defendant had suffered from shame, resulting from the disclosure of this offence, and he very much valued the support of his family members and promised to turn over a new leaf. 14.His sister said that the introvert character of the defendant and his ignorance of the law was to be blamed but she had expressed the full support of the family members for the defendant’s reform. 15.The ex-employer had praised the defendant to be a polite and diligent worker and had all along a good relationship with his colleagues during work. Sentencing Considerations 16.In sentencing, I took into account of the defendant’s plea, his clear record, the mitigation put forward, as well as the case authorities submitted by both prosecution and defence for my consideration. 17.The statutory maximum in respect for this offence is for 5 years’ imprisonment and a fine of HK$1 million on indictment. 18.According to Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, the sentence for this offence shall focus on the deterrence to protect children who are subject to sexual exploitation and moral depravity. When the number of video clips (especially Level 4 material) is large, the sentence will generally be substantial. The court took the view that for Level 4 cases, the most serious treatment and the sentence generally will be between 12 months to 36 months. 19.The court also made it clear that the aforesaid level of sentence were meant to be starting points only and there would be aggravating features that would enhance the starting points. One of the aggravating features identified by the Court of Appeal is the age of the children depicted. Where the depiction involved particularly young children, this would be an important consideration. 20.In HKSAR v Choy Ka Leung, CACC 365/2012, Yeung VP said that in cases that involved one or more of the aggravating features, then the starting point will be increased and will well exceed 3 years, bearing in mind the maximum sentence is 5 years’ imprisonment. 21.I have taken into account everything that can be said on behalf of the defendant. 22.As said, I have also obtained a psychological report in respect of the defendant. The clinic psychologist formed the view that the defendant was a socially lonely individual, who perceived interaction with adults as insecure and unpleasant. 23.Contrary to the claim by the defendant to the police after his arrest, the result of his psychological assessment is that the defendant has suffered from symptoms of paedophilia and psychological treatment is recommended. His risk of sexual recidivism is moderate, said the clinical psychologist, in view of his lack of a stable relationship and also his social condition and also his symptoms of paedophilia. 24.All of the video clips of the present case consist of real children and the vast majority of the photos and the video clips had depicted boys whose age is between 5 to 9. 25.I have also viewed a photo album of the child pornography in question. It can be seen that in all the photos, very young boys were depicted in the photos. I can see that those young boys were clearly being exploited in those photos. This is clearly an aggravating factor present in this case that I cannot ignore. 26.A serious view must be taken against those who possess child pornography and, for the protection of the boys and the society generally, a deterrent sentence is clearly called for. 27.I have compared the numbers of the Level 4 images in this case with the other cases. In Choy Ka Leung, the number of Level 4 photos is 145 and the real video clip is only 27. The children involved is aged between 2 to 9 years. The Court of Appeal did not interfere with the ultimate sentence of 22 months’ imprisonment after a guilty plea. 28.Looking at it from this angle, apparently the present case is more serious. In terms of the total numbers of the child pornography material involved in the present case, it is 2,291 more than the Choy Ka Leung case as far as the photos are concerned and it is also 298 more as far as the video clips are concerned. 29.I therefore took a starting point of 3 years and 3 months (39 months) in total. 30.After giving the defendant one-third discount on account of his plea, which I can see is the only effective mitigating factor, the sentence that the defendant shall receive for this offence is, therefore, 26 months’ imprisonment. 31.I shall also refer his psychological report to the CSD for follow-up action.
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