HKSAR v. L

HCMA 276/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 276 OF 2014

(ON APPEAL FROM KCCC 700029 OF 2014)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 3September 2014

Date of Judgment: 3 September 2014

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J U D G M E N T

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1.This Appellant, a teenager without any previous conviction, appeared in the Juvenile Court at the Kowloon City Magistracy on a charge of possession of child pornography, contrary to s. 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579. The circumstances of the offence were that on 15 August 2013, when he was 14 years old, at the flat where he resided with his parents, the Appellant had in his possession 11 child pornographic videos which he had downloaded. From the 22 still images which the Magistrate looked at, all that he felt sure of was that all the children depicted were under the age of 16 and that one was aged 11 or 12.

2.On the Appellant’s first appearance, the Magistrate recorded a plea of guilty, entered a conviction on that plea and sent for various reports. At the resumed hearing, the Magistrate sentenced the Appellant to probation for 18 months. The probation officer who reported to the Magistrate did not recommend probation. Instead he recommended a care and protection order under s.34(1) of the Protection of Children and Juveniles Ordinance, Cap. 213, with the following additional requirements:

“ (i) that he shall study/work and reside as directed by Supervising Social Welfare Officer;

(ii) that he shall observe home curfew from 8:00 p.m. to 6:00 a.m. unless with prior consent of Supervising Social Welfare Officer or in the company of his adult family members;

(iii) that he shall attend and participate in such activities, groups or programmes as the Supervising Social Welfare Officer may advise, for the purpose of enhancing his personal growth and rehabilitation; and

(iv) that he shall receive psychological and/or psychiatric assessment and treatment as directed.”

3.The Appellant now appeals against conviction and sentence. There is no dispute that the Appellant did what he was charged with doing. What is submitted on the Appellant’s behalf is, first of all, that the Magistrate should not have entered a conviction on the plea which the Appellant tendered, and should instead have resorted to s.8(9) of the Juvenile Offenders Ordinance, Cap. 226, which provides as follows:

“If the child or young person admits the offence or the court is satisfied that it is proved, and the court decides that a remand is necessary for purposes of inquiry or observation, the court may cause an entry to be made in the court register that the charge is proved and that the child or young person has been remanded. The court before which a child or young person so remanded is brought may without further proof of the commission of the offence make any order in respect of the child or young person which could have been made by the court which so remanded the child or young person.”

Then, the submission continues, the Magistrate should have, without entering a conviction and thus sparing the Appellant from the stigma of a conviction, made a care and protection order as the probation officer recommended.

4.The psychologist’s report made to the Magistrate states that the Appellant has Asperger’s Syndrome with attention deficit since early childhood. It refers to his development difficulties which have caused significant impairment socially and in school. It states that he would benefit from “counseling services”. Finally, it states that “[c]ommunity supervision and guidance” would be “helpful in sustaining his treatment progress”.

5.Possession of child pornography is of course a serious offence. The worst cases call for sentences of utmost severity. The present case is nowhere near that category of cases, neither in the particular circumstances of the offence nor in the particular circumstances of the offender.

6.In my judgment, the just course, bearing in mind the interests of the Appellant and of society, is clear. It is to allow this appeal so as not to enter a conviction on the plea which the Appellant tendered, to resort instead to s.8(9) of the Juvenile Offenders Ordinance, to set aside the probation order and to make a care and protection order with the additional requirements recommended by the probation officer, being those which I have quoted. The appeal is allowed accordingly and the conviction is quashed.  In the light of this, the Magistrate’s order that there be an appearance before him on 30 September 2014 for a progress report goes.

(V Bokhary) Judge of the Court of First Instance High Court

Ms Charlotte Draycott, SC and Ms Becky Wong, instructed by K B Chau & Co, for the appellant

Mr Martin Hui, of the Department of Justice, for the respondent