HKSAR v. CHAN MIN HEI

DCCC 1047/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1047 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 16 February 2016, the defendant was convicted, on his plea of guilty, of one charge of possession of child pornography, a charge that was preferred against him under section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.

Facts

2.  In early 2015, the police targeted IP addresses which have been used in downloading from the internet child pornographic material, and managed to trace one of them to the defendant’s residence at Room 2108, Ching Ping House, Ching Ho Estate, Sheung Shui, New Territories.  They raided the unit on 12 March 2015 and found stored in the defendant’s computer the following child pornographic material: 41 photographs and five videos containing images and scenes of children in erotic posture (level 1); five photographs and 12 videos showing sexual activities between children or solo masturbation by a child (level 2); 58 photographs and 30 videos depicting sexual activities between adults and children (level 3); and nine photographs and 51 videos containing scenes of penetrative sexual acts between adults and children (level 4).  The defendant was arrested; under caution, he said he has downloaded the photographs and videos for his own enjoyment and that he thought the children shown in the photographs and videos were between five and 13 years of age.

3.  The photographs, together with still images developed from the videos, have been submitted to court for inspection.  According to the “Description of File Contents” prepared by the prosecution, of the 113 photographs so submitted, nine depict male persons engaging in penetrative sexual acts with a toddler of about one year old and with girls of about five to 12 years old.  The 247 still images captured from the 98 videos contain 139 scenes of penetrative sexual acts committed by male persons on young girls of around four to 13 years old.  In addition, there are three scenes of a boy and a girl, both aged around 12, engaging in sexual intercourse, and two scenes of a boy of around 10 years old having anal sex with a girl aged about 10.

Mitigation

4.  The defendant, a person of previous good character, was born in Hong Kong in October 1994 and is now 21 years old.  He has received education up to high diploma level and, according to the antecedent statement, has since 2012 worked as a clerk. 

5.  In his plea in mitigation, Mr Lawrence Hui stresses the defendant was not the manufacturer of the offending films and photographs and that he has never shared them with anyone.  The defendant committed the subject offence, continues Mr Hui, because he is an introvert but is very curious about the opposite gender; not realizing the seriousness of the offence, the defendant downloaded the offending articles – free of charge – from the internet.  Mr Hui submits that he defendant has co-operated with the police in their investigation; further, the defendant agrees to the estimated age of the children shown in the videos and photographs and to the police categorization of the offending material into the four levels of infringement referred to in SJ v Man Kwong Choi[1]. In view of the defendant’s age and his previous clear record, Mr Hui asks the court to consider sending the defendant to a detention centre.  Failing that, Mr Hui would ask the court to adopt a global approach in sentencing the defendant, ie., to consider the offending photographs and video clippings ensemble.   Arguing that the defendant’s case is not the worst of its kind, Mr Hui asks the court to fix as low a starting point as possible, noting that the sentence range propounded in SJ v Man Kwong Choi[2] for possessing child pornography in the level-four category is a term of imprisonment between 12 and 36 months. 

6.  The background report shows that the defendant has an elder sister and is the only son of the family.  In his formative years, he and his elder sister have been taken care of by his paternal grandmother.  As a result of family discord, his parents divorced each other in 2004.  He became distant from his father from then but continues to enjoy a good relationship with his mother.  His mother works in a game centre, making about $7,000 a month, his father having passed away in December 2015. The defendant used to work as an assistant building surveyor, earning around $13,000 a month; he has resigned from his job subsequent to his father’s death.  Previously at school, the defendant kept very much to himself and felt unhappy for not being able to get along with his classmates.  The situation has improved somewhat during his two-year studies at IVE.  It was in this period, however, that he began watching child pornographic videos on the internet and has become addicted to them.  According to his mother, the defendant has shown no problematic behaviour at home and at school; he has contributed towards household expenses to the tune of $4,000 to $5,000 a month.  While acknowledging that the defendant has spent a lot of time playing on-line games, neither his mother nor his sister was aware he has taken to browsing pornographic websites.  They believe that the defendant committed the present offence out of curiosity and because of his ignorance of its seriousness; they ask the court to pass a lenient sentence on him. 

7.  A psychiatrist has examined the defendant and is of the opinion that he is not suffering from any formal psychiatric disorder; no treatment or counselling is recommended.  According to a psychologist, the defendant has failed to develop intimacy with females of comparable age and, thus, has resorted to impersonal sex to cope with loneliness and intimacy deficit. Psychological treatment focussing on his deviant sexual interest is strongly recommended.          

Consideration

8.  The leading case on sentencing in respect of the offence of possession of child pornography is SJ v Man Kwong Choi[3].  There the Court of Appeal identified the relevant sentencing considerations as follows.  First, while mere possession of the offending material is less serious than its production, distribution or publication, the possession offence remains a serious one in view of the need to protect children from exploitation. Secondly, the children involved in the production of the offending articles must have undergone an experience that was demeaning.  In addition, prevalence of child pornography would encourage paedophilic activities, resulting in harm and injuries to children.  Thirdly, the exploitation of children arising from or in connection with child pornography is a problem worldwide.  Hong Kong must do its part at the international level to protect children from this form of exploitation.  Fourthly, the ready availability of the internet nowadays means that there is an obvious, significant potential for child pornography to spread.  In the result, the Court of Appeal held, “the deterrence factor becomes particularly significant when sentencing for the offence of possession of child pornography.”[4]     

9.  Of moment to the present case is an aggravating feature identified in SJ v Man Kwong Choi[5], namely, the age of the children concerned: “where the depictions involve particularly young children, this would be an important consideration.”[6]  The children shown or depicted in the videos and photographs in the level-four category in this case include a toddler and children of four or five years of age, and the number of offending videos and photographs seized by the police cannot be described as minimal or insignificant.  A detention centre order is, in the court’s judgment, inappropriate in view of seriousness of the offence committed by the defendant.

10.  It is noted that the two cases under review – namely, CAAR 8/2007 and CAAR 9/2007 – in SJ v Man Kwong Choi[7] concerned many more offending films and photographs than the present case.  Of the two review applications, the Court of Appeal said:

23. In the case of the Respondent in CAAR 8/2007, aged 31 at the time of sentencing, we have set out the number of images and the applicable levels which formed the subject‑matter of the charge against him (see paragraph 6(1) above). The following additional facts are also relevant : ‑

(1) The images (comprising both photographs and video files) were for his personal use.

(2) The images were all of real children, most of whose apparent ages were between 5 and 12. The images covered every level.

(3) The Respondent had one previous conviction in 1998 for an indecent assault involving a 12‑year old girl.

(4) The number of images and video files in the Respondent’s possession, more than half of which showed children with adults.

24. The quantity of child pornography in CAAR 8/2007 was large. There were also many images in Levels 3 and 4. Given this and the other factors set out above, we would have thought that an immediate sentence of 3 years’ imprisonment would have been appropriate after trial in the District Court. We do not consider that a case of this gravity should have been tried in the Magistrates Court where the maximum sentence would have been 2 years, albeit there would of course have been a reduction by one‑third on account of the guilty plea.

25. The following facts are relevant to the Respondent in CAAR 9/2007 aged 20 at the time he was sentenced (the images and their levels are set out in paragraph 6(2) above) : ‑

(1) The images (also photographs and video files) were for his personal use.

(2) Whilst the majority of the images in the Respondent’s possession were at Level 1, there were also significant amounts under Levels 2 to 4, only a few at Level 4. The children in these images ranged from about 0 to 15; and 634 of them involved children with adults.

26. In the case of the Respondent in CAAR 9/2007, we are of the view that as he was under 21 when he was convicted, and assuming that a Training Centre report had certified him to be a suitable candidate, a Training Centre order would have been appropriate. However, if he had attained the age of 21 when he was convicted, a sentence of 2 years’ imprisonment would have been appropriate.” (emphasis supplied)

11.  In the instant case, the still images show – certainly not only a few – but a total of 139 scenes falling within the category of level-four transgression.  In the court’s view, in terms of gravity of offence, this factor has pushed the present case well beyond the level of culpability exhibited in CAAR 9/2007. 

12.  The statutory maximum sentence for the offence in question is one of five years’ imprisonment and a fine of $1m[8].  In all the circumstances of the present case, having considered all the matters Mr Hui has urged upon this court, the court rules that the appropriate starting point is one of two and a half years’ imprisonment.  The defendant is entitled to the usual one-third discount for his guilty plea.  Little in the defendant’s background and the circumstances in which the offence was committed would warrant any further discount.  The final sentence is one of 20 months’ imprisonment.

Conclusion

13.  For the offence of which he stands convicted, the defendant is sentenced to 20 months’ imprisonment.  It is a recommendation of this court that the defendant be provided with psychological treatment during the period of his incarceration.