HKSAR v. LEUNG CHI KEUNG

DCCC 97/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 97 OF 2015

____________

____________

REASONS FOR SENTENCE

1.  Leung Chi Keung you stand convicted after trial of one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance.[1]

2.  Full particulars of the offence are set out in my reasons for verdict delivered on the 25 September 2015.  In summary on the evening of the 29th January 2014 the police executed a search warrant at your home.  The police seized from your bedroom a white desk top computer.  Subsequent forensic examination of the computer by DSPC 23344 of the Technology Crime Division revealed that sixteen video files and thirteen photo files suspected to be child pornography were stored on the computer.  Admitted in evidence at trial was that ten of the video files and four of the photo files were child pornography.   

3.  The child pornography files were created in 2008 except one file which was created in 2009 and were all found in C drive, in the download folder of Foxy.  All the child pornography files had been viewed with the last access time being in 2012 and 2013, except one video file and the photo files which were last viewed in 2008.  The child pornography was easily accessible from C drive; shortcuts and directly from Real Player and Foxy and not stored or hidden in an inaccessible place such as a cache or required special expertise or equipment to recover.  I was satisfied that you had viewed the child pornography.

4.  In passing sentence I take into account everything said on your behalf by Mr Boyton, including that the child pornography had last been viewed about nine months prior to your arrest and that at the time of your arrest the computer was not connected to any cable or equipment.  I take into account you have no previous convictions. 

5.  I have carefully considered the content of the psychological and psychiatric reports. The psychologist is of the opinion that there is no evidence warranting diagnosis of any clinically significant psychological problems or paraphilic disorder and that the risk of sexual recidivism of similar offences is assessed to be low. 

Guidelines

6.  In the Secretary for Justice v Man Kwong Choi[2] the Court of Appeal laid down guidelines as to sentence for possession of child pornography.  In setting the guidelines the Court of Appeal considered the classification levels adopted in England together with the factors relevant to sentencing, referred to in R v Oliver & Others.[3]  

7.  The first consideration is the appropriate level of the relevant depictions.  The Court of Appeal adopted four classification levels.  The parties admitted in the trial the classification of the video files and the photo files as follows:[4]

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

2 video files and 2 photo files; and

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

8 video files and 2 photo files.

To be noted is that the video files at Level 2 are the same video; the two photo files at Level 4 are the same photo; and two video files at Level 4 are the same video.

8. The Court of Appeal considered Level 4 cases as meriting the most serious treatment and said the range of custodial sentences should generally be from 12 months to 3 years, even for a few images. The Court of Appeal also listed a number of aggravating features including the age of the children depicted; an intention to publish and the number of images.

9.  In Chung Kai Yeung v HKSAR [5] the appellant pleaded guilty to possession of seven image files and twenty two video files, six of which were categorised as Level 4.  These included sexual activity between a girl aged 10 and an adult and a girl aged 10 and an animal.  Taking into account the number of child pornographic items; their nature; the ages of the children; and the personal circumstances of the appellant, the court held that the appropriate sentence, after allowing for the usual reduction for a plea of guilty, was one of 10 months imprisonment. 

10.  I have been supplied with two files of photographs, exhibit P6 produced at trial and another folder prepared at the request of the court for sentence.  The photographs are accompanied by a description of the videos. 

11.  From these images and stills the ages of the children can be seen to vary from as young as 5 to teenagers.  Although categorised as Level 2, photographs 11 and 12, exhibit P6, are particularly disturbing showing a pen inserted in the private parts of a young girl.

12.  While there is no bestiality as in Chung Kai Yeung, the ages of the children are younger with both video files and photo files involving girls of only 5 years of age.  One video involving a girl of 5 years of age is described as “cruel child sexual intercourse”, which video lasts 5 minutes and 49 seconds.  The additional photographs 5, 6, 7 & 8 show this little girl was subject to oral sex, sexual intercourse and what appears to be buggery.

13.  The images and films are nothing short of repulsive and disgusting.  As said in Oliver assaults on very young children attract particular repugnance and may by the conduct depicted in the image indicate the likelihood of physical injury to the private parts of the children.  However in passing sentence I take heed of what was said in the Scottish case of Her Majesty’s Advocate v David William Graham,[6] that if the sentencer thinks it appropriate to view all or a sample of the images, he should be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen.

14.  In R v Somerset[7] the court said that it was unrealistic to suggest that video films should be regarded as the equivalent of a single still image, in particular when some of the films ran for several minutes, and in one case for nearly fifteen minutes.  The court said that a sensible assessment and adjustment would therefore be needed where video footage was involved. 

15.  Somerset was referred to in Graham, where the court said that whether a video clip is worse than a still image will depend in every case on its length, on what it depicts and how it depicts it.  Without attempting any detailed arithmetical computation the court said the sensible approach is simply to make an allowance for the fact that a moving image may be more vivid and corrupting than a still image, however the primary factors to which a sentencer must have regard remain the nature of the images and the extent of the offender’s involvement with child pornography.

16.  Taking into account the number of video files and photo files; their nature and your personal circumstances, I am satisfied the proper sentence after trial is 15 months imprisonment. 

Delay

17.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary.[8]

18.  You were arrested on 29 January 2014 and placed on police bail.  On the 26 September 2014 you were released from bail because the investigation was not yet completed.  You were rearrested on the 5 January this year when you were charged.  You first appeared in court on the 9 January this year.  

19.  Mr Tracy has explained in court that the time taken to bring the case to court was due to the fact that other matters were under investigation.  Full particulars have not been provided save to say that they relate to the reason for your arrest, namely impersonating a police officer.  Eventually a decision was made to lay only the charges for which you stood trial. 

20.  Arguably the matter could reasonably have been brought to court earlier than it was.  I am satisfied some credit should be given in sentence for this delay. [9] In the circumstances I reduce the sentence by 1 month imprisonment.  You are convicted and sentenced to 14 months imprisonment.