SECRETARY FOR JUSTICE v. CHAN ON SHUN

[English Translation – 英譯本]

CAAR 3/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2017

(ON APPEAL FROM KCCC NO. 2493 OF 2016)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The Respondent (Chan On Shun) pleaded guilty to one count of possession of child pornography in the Kowloon City Magistrates’ Court before Deputy Magistrate Chan Kwok Hung (transliteration) (sic.) (the trial magistrate). He was sentenced to 12 months’ imprisonment, suspended for 2 years (the sentence).

2.  The Secretary for Justice (the Applicant) considered the sentence wrong in principle and manifestly inadequate, and applies, with leave granted by the Acting Chief Judge of the High Court, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, for review of the sentence.

3.  After the hearing, we allowed the Secretary for Justice’s application for review of sentence, and substituted with an immediate prison sentence of 9 months against the Respondent.  These are our reasons.

The facts

4.  At 5:25 am on 12 March 2015, police officers entered the Respondent’s residence (the residence) in Oi Man Estate in Hung Hom with a warrant, and searched the residence in the presence of the Respondent’s mother, wife and son.  At the time, the Respondent was working in the airport and was not at home.

5.  In the living room of the residence, in a computer (typographical error) used by the Respondent, there were some child pornographic photographs and video footages.

6.  At 6:45 am on the same day, the Respondent was arrested upon returning to the residence.  Under caution, the Respondent admitted to having downloaded photographs and video footages of some girls. The Respondent said to the police officers: “Ah Sir, I just downloaded footages and photos of the little girls in a fit of curiosity, give me a chance”.

7.  Later in a video-recorded interview with the police officers, the Respondent indicated that he had downloaded a total of 43 child pornographic video footages to his computer through the “Foxy” software.  He went on to say that he had tried to download some adult pornographic materials, but the adults shown looked like children.  Therefore, he inputted “12”, “13” or “14” into the search engine, with the view to search for pornographic video footages of adults who look like children.  The Respondent claimed that he did not believe that he could successfully download real child pornographic video footages through “Foxy”.  He further claimed that the “children” in the footages were actually “dwarves” or were made using computer special effects.

8.  After scientific forensic examination, the 43 child pornographic video footages involved were all child pornographic materials, showing children of ages around 6 to 16.  21 of those footages depicted children of ages 6 to 16 having penetrative sexual activities with adults, and two footages even depicted child(ren) of age(s) 6 to 10 in acts of bestiality with dog(s), but those two child pornographic video footages appear to be duplicates.

The background and grounds of mitigation of the Respondent

9.  The Respondent is aged 33, married, living in a public housing estate with his wife and a six years old son.  He has a daughter with his ex-wife.  That daughter lives with her mother in the Mainland.

10.  The Respondent suffers from depression, with symptoms of depressed mood, insomnia, lack of motivation and self-harming.  Before the incident, the Respondent’s mother suffered from cancer, because of that, the Respondent’s psychiatric illness had worsened and faced financial difficulties.  The Respondent’s mother died of the illness in September 2016.

11.  The Respondent has had the habit of viewing pornographic publications since he was in Form Four or Five.  The Respondent claimed that he did not intend to search for and view child pornographic publications, but noticed that the persons appearing in online pornographic publications were older than what he had searched for, so he searched online for younger women.  The Respondent contended that he was not sexually deviated, nor was he particularly interested in underage persons.

12.  The Respondent indicated that he was the breadwinner of the family, and was worried that he might be imprisoned.

13.  After the incident, the Respondent consulted a psychiatrist for having depressed mood, insomnia, lack of motivation and self-harming behaviour.  The doctor indicated that the Respondent suffers from depression, but made clear in the medical report that the offence committed by the Respondent was not related to his mental condition.

14.  The Respondent’s wife indicated that the relationship with him was distanced, and that the Respondent spent most of his time on electronic games, rather than with her and their son.  The Respondent’s wife also admitted that she had placed all her attention on their son and neglected the Respondent.  She was also of the view that their distanced relationship might have caused the Respondent’s indulgence in online pornographic publications to relax himself.  She further opined that the Respondent did not have improper behaviour, and did not have particular preference towards children.

15.  The Respondent contended that he did not have any sexual interest in children, and had only committed the offence out of curiosity.

16.  The psychologist pointed out that the Respondent did not have sexual perversion and did not require any psychological treatment.

The trial magistrate’s reasons for sentence

17.  The trial magistrate pointed out that the offence in the present case was serious, which generally called for a deterrent sentence of immediate imprisonment, especially when the pornographic materials involved were at Level 4.

18.  The trial magistrate stressed that this case involved 23 child pornographic video footages at Level 4, and the starting point should be 12 to 36 months’ imprisonment, though the court would be bound by a maximum sentence of 2 years when the case was dealt with summarily in the magistrates’ courts.

19.  The trial judge had considered the following mitigating factors:

(1)  The family circumstances of the Respondent, including that his mother suffered from cancer (and passed away in September 2016) and that his wife was pregnant.

(2)  It had been 16 months from when the Respondent was arrested to the day of sentencing, since the Respondent had admitted the allegations to the Police, there was a delay in the case.

In the end, the trial magistrate considered that the delay was sufficient ground for him to suspend the sentence imposed on the Respondent.

20.  The trial magistrate took 18 months as the starting point, and reduced the sentence by one-third to 12 months on account of the Respondent’s guilty plea.

21.  The trial magistrate ordered that the 12 months sentence be suspended for 24 months.

The Applicant’s grounds for the application for review of sentence

22.  The Applicant pointed out that unless there are special circumstances, possession of child pornography should generally attract an immediate custodial sentence.  The Applicant stressed that a suspended sentence is not appropriate for this type of cases, the reason being that a sentence imposed for the possession of child pornography should carry deterrence.  The Applicant contended that the principal sentencing consideration in the present case should be deterrence, rather than the rehabilitation of the Respondent, therefore the court should not have imposed a suspended sentence when the principle of rehabilitation was not applicable.

23.  The Applicant stressed that the youngest child involved in this case was of only six years old, the pornographic materials involved were at Level 3 and Level 4, and two of the video footages even depicted bestiality.

24.  The Applicant considered that the trial magistrate had given too much weight to the Respondent’s family circumstances and the delay in the case, and the sentence eventually passed was one that was contrary to the sentencing principles, and one that no reasonable tribunal, having considered all relevant factors, would have considered passing.

The Respondent’s stance

25.  Mr. Paul C.L. Leung, representing the Respondent, submitted that even for cases involving the possession of child pornography, it is still at the court’s discretion to impose a suspended sentence on the offender.

26.  Mr. Leung pointed out that after the Respondent had plead guilty and while pending sentence, his mother suffered from terminal intestinal cancer and passed away before he was sentenced.  Mr. Leung also pointed out that the Respondent’s wife was pregnant before he was sentenced, and gave birth to a child after sentencing.

27.  Mr. Leung stressed that the Respondent did not have a criminal record, had frankly admitted criminal liability and is remorseful, is not in any way sexually deviant, and is therefore unlikely to re-offend.

28.  Mr. Leung also stressed that the prosecution had applied for a review of the sentence before the trial magistrate, and the Respondent has been under considerable mental stress because of the incident.

29.  Mr. Leung contended that the court has a discretion to impose a suspended sentence in this type of cases, and that the trial magistrate had given appropriate weight to the considerations of rehabilitation or recovery of the Respondent.

30.  Mr. Leung considered that the incident arose partly from the Respondent’s family discord, and the Respondent has been actively mending relationship with his wife, and their relationship has thus improved.

31.  Mr. Leung asked the court to take into account the above special factors in the case and that there was delay in prosecution, and exercise its discretion to be lenient to the Respondent, and spare him from the hardship that would be caused by an immediate imprisonment.

Discussion

32.  Possession of child pornography is an extremely serious offence.  If there was no one interested in child pornography, bad characters producing child pornography would be less motivated to exploit children, and use children in the production of pornography. Therefore, persons in possession of child pornography indirectly encourage such a shameless industry of child pornography production.  For the protection of children, to protect them from sexual exploitation, the court must impose severe sentences for the offence of possession of child pornography.  Otherwise, such despicable offences involving sexually exploiting children are extremely hard to eradicate.  In sentencing for possession of child pornography, protection of children shall be given more weight than the rehabilitation of the offender.

33.  For offences such as the possession of child pornography, the court should impose an immediate custodial sentence unless special circumstances exist.  (See Secretary for Justice v Man Kwong Choi & Anor [2008] 4 HKC 565)

34.  In Man Kwong Choi, the Court of Appeal laid down a sentencing guideline based on the level of eroticism of the pornography:

Level 1   images depicting erotic posing with no sexual activity.

Level 2   images depicting sexual activity between children or solo masturbation by a child.

Level 3   images depicting non-penetrative sexual activity between adults and children.

Level 4   images depicting penetrative sexual activity between children and adults, or sadism or bestiality.

35.  The Court of Appeal considered that:

(1)  The sentence for child pornography at Level 1 (a small number of pornography, less than 20) could be a community service order, probation or fine.  Where the numbers are large and the pornographic depictions are suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

(2)  Depending on the number of depictions, sentence for child pornography at Level 2 could be up to immediate imprisonment of 9 months, and even the possession of a few depictions should attract an immediate imprisonment.

(3)  Depending on the number of depictions, sentences for child pornography at Level 3 should be imprisonment of 6 months to 12 months.

(4)  For child pornography at Level 4, serious treatment is warranted.  Generally, sentences should range from 12 months (even for a few images) to 36 months.

36.  The Court of Appeal also identified the following aggravating factors:

(1)  The accused has a previous criminal record involving a similar offence against children;

(2)  The age of the children depicted.  Where the depictions involve particularly young children, this would be an important consideration.

(3)  The purpose for which the accused possesses the depictions is relevant.  Where it is confirmed that the accused intends to disseminate the images for commercial or non-commercial gain, or intends to publish, these will be significant aggravating factors.

(4)  The number of images.

37.  The Court of Appeal pointed out that the special circumstances that a sentence of immediate imprisonment is not necessary are that the pornographic materials are at Level 1 and their quantity is so small as to make it de minimis.  The present case is clearly not in the special circumstances stated by the Court of Appeal in Man Kwong Choi that an immediate custodial sentence could be avoided.

38.  In the present case, 43 child pornographic video footages were involved, of which 21 footages depicted penetrative sexual activities between children (aged between 6 and 16) and adults; two footages even involved acts of bestiality between child(ren) (aged between 6 and 10) and dog(s).

39.  Such pornographic materials were not in a small quantity and were at Level 4, which could lead to imprisonment of 12 months to 36 months.

40.  This Court must not overlook that some of the pornographic video footages in the present case depicted children that were particularly young, as low as 6 years old, which is an aggravating factor.  We consider that no matter how lenient the Respondent is to be dealt with, a suspended sentence is absolutely inappropriate.

41.  Based on the nature and quantity of the child pornography involved, we are of the view that the appropriate starting point is 18 months’ imprisonment.  The Respondent has pleaded guilty, and should be given a one-third discount.

42.  There was an avoidable delay of prosecution in this case (of about 7 months), Senior Public Prosecutor Mr. Kuan Bak On, Franco for the Applicant also agreed that there was such a delay in the case.  For the Respondent, in particular where he suffers from depression, a delay in the case would seriously affect his mental conditions.  We agree that this is a mitigating factor.  We also take into consideration other mitigating factors, including the Respondent’s background and the nature of this application. We consider that the Respondent should receive a further discount of 3 months in the sentence.  We are of the view that the most lenient sentence on the Respondent is a term of immediate imprisonment of 9 months.

43.  We therefore granted the application for review of sentence.  We set aside the original sentence of 12 months’ imprisonment (suspended for 24 months) and in substitution thereof imposed a sentence of immediate imprisonment of 9 months.  The Respondent was to serve 9 months’ imprisonment immediately.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.