HKSAR v. FONG CHI HO

DCCC 399/2019

[2020] HKDC 52

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 399 OF 2019

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REASONS FOR SENTENCE

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Charge

1.  Defendant is convicted on his own plea and agreement to Summary of Facts to a charge of possession of child pornography contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579 (PCPO).

Facts

2.  On 26 April 2018, police found, upon execution of a search warrant in the defendant’s bedroom at Flat 7, 2nd Floor, Lung Wah House, Lower Wong Tai Sin Estate, Wong Tai Sin, Kowloon, Hong Kong, a Lenovo desktop computer with five child pornographic video files.  

3.  The defendant was arrested for possession of child pornography. 

4.  Under caution, the defendant admitted that the child pornography videos were downloaded by him using “Foxy.”

5.  Digital forensic examination was carried out on the computer.  Upon review, the police found a total of 328 child pornographic video files stored in the computer hard disk.  The classification of the child pornography involved is as follows:

	Level 1 - Images depicting erotic posing with no sexual activity			Sub - total
Age	0-5 years old	6-10 years old	11-15years old
Video files	2	29	25	56

	Level 2 – Sexual activity between children, or solo masturbation by a child			Sub - total
Age	0-5 years old	6-10 years old	11-15years old
Video files	0	20	53	73

	Level 3 – Non-penetrative sexual activity between adults and children and the portrayal of any digital touching of genitalia between an adult and a child			Sub - total
Age	0-5 years old	6-10 years old	11-15years old
Video files	1	7	4	12

	Level 4 – Penetrative sexual activity between children and adults or sadism or bestiality, the portrayal of digital penetration, masturbation or oral sex between an adult and a child			Sub - total
Age	0-5 years old	6-10 years old	11-15years old
Video files	11	115	61	187

6.  In level 4 category, one video depicted a girl performing oral sex for a male animal and two involved sadism between children. 

7.  In the two video-recorded interviews that followed his arrest, the defendant admitted under caution that:

(a) he used “Foxy” to search for and download child pornography;

(b) he has downloaded around 200 child pornography videos since early 2017 and most of the videos were saved in the D drive of the computer;

(c) he downloaded the child pornography videos out of curiosity and for his own viewing.

Criminal record

8.  The defendant has a clear record.

Mitigation

9.  The defendant is aged 23.  He lived with his parents and an elder brother in a public housing estate.  He has a total of five siblings. 

10.  He has a clear record. 

11.  He graduated from Hong Kong Nang Yan College of Higher Education with a Bachelor Degree in Chinese Literature. 

12.  He has been employed as a senior supervisor at Jumpin Gym USA since May 2014 on a part-time basis and he earns $12,000 per month out of which he contributes $3,000 to his parents as living expenses.

13.  In the letter from the defendant, the defendant states that he is an introvert having no experience in a sexual relationship.  He says he is curious and, therefore, although he seldom watched those child pornographic videos, he could not help storing those videos.  He says he deeply regrets what he has done which upsets his family whom has a high expectation of him.

14.  He says he is now deeply remorseful as to what he has done and that he should be more strict in self-discipline.  He vows not to re-offend. 

15.  He says he realised that, although, he did not harm people but children are often pressurised or threatened or drugged and they are ill-treated to produce those videos which caused them long-term adverse influence on their development.

16.  He says since his arrest he was restrained from leaving Hong Kong and had to report to the police station.  He now treasured freedom and he asks this court for leniency.

17.  The letter from the defendant’s family say basically that the defendant is a young man with a kind heart.  They say he is an introvert.  He has been making donations towards a child sponsorship program and has been performing volunteer work at Caritas Jockey Club Wong Tai Sin Youth Integrated Service Centre. 

18.  He is said to be a very responsible person and helped in household chores. It is also said that when the defendant studied in the past, he did a part-time job to earn part of the tuition fee to relieve the family of its financial burden.  The family asks this court to treat the defendant leniently.  They say they will help to instil the correct value in the defendant and care more about him. 

19.  Before sentencing, this court has called for a psychiatric and psychological report.

Psychiatric report

20.  The psychiatric report by Dr Liu Ching Yung Amy dated 4 October 2019, says that the defendant claimed he committed the offence out of curiosity and that he denies being sexually aroused or masturbated watching the subject videos.  He is not diagnosed suffering from any formal psychiatric illness and psychiatric care is not warranted.  It is also said the defendant is mentally fit to plead.

Psychological report

21.  The defendant has claimed to be an introvertive person with limited interaction with his peers during formative years.  He graduated in 2018 but did not take up any full-time job because of the arrest in the present case. He used to work part-time in the Jumpin Gym, an indoor amusement centre for kids.  Ms Lam, the clinical psychologist, opines that the defendant is an introvertive person with negative image.  He kept feelings to himself and would stay shy in front of the opposite sex.  It is said that the defendant does not suffer overt psychopathology or sexual deviancy.  He was not noted to be at high risk of sexual reoffending.  Ms Lam has no recommendation to make other than that he should strengthen his own self-esteem. 

Discussion

22.  For the current offence, on conviction upon indictment the maximum sentence is 5 years’ imprisonment. 

23.  Before sentencing, this court has considered all submissions from defence counsel, the reports, mitigation letters, volume and nature of the videos concerned, in particular, those at level 4, the chance of reoffending, the defendant’s age and the authorities in the area.

24.  In the cited case, Secretary for Justice v Man Kwong Choi, CAAR 8 of 2007 and CAAR 9 of 2007, Ma CJHC, as he then was, said that it is important that a sentencer of this offence examine the images or, at the very least, a representative sample so that the true nature and gravity is made apparent.

25.  It is also said that in sentencing for offences under section 3 of the PCPO, the main aspect is one of deterrence and that there are two facets which have to be considered.  First, and the more important, the protection of the victims of child pornography, namely, the exploited children themselves and, secondly, society generally.

26.  In the same case, the following considerations are said to be relevant:

“(1) While mere possession of child pornography can be said on one view to be less serious than the production, distribution or publication of such material, its seriousness should nevertheless not be underestimated. But for the demand of persons wanting to possess child pornography, there would not be the production, distribution or publication of it. In other words, all these various facets make significant contributions to the exploitation of vulnerable children.

(2) The harm to children cannot be stressed enough. For the children depicted in child pornography, they are degraded, dehumanized, traumatized and lose all semblance of dignity. For other children, the prevalence of child pornography only encourages paedophiles and their activities. One of the many dangers is that vulnerable children may regard the type of sexual conduct seen in child pornography as being in some way normal or worse still, expected of them. Many of the victims grow up mentally scarred. There may sometimes even be evidence of physical injury to the private parts of children.

(3) Child pornography and the exploitation of vulnerable children is a worldwide problem, albeit the preponderance of this may be more readily found in some countries than others. Nevertheless, child pornography is a problem that requires a concerted approach from communities worldwide if children are to be protected.

(4) Child pornography has the potential (if it is not already so) of being widespread. The ready availability of child pornography through the internet (such as in the present cases) considerably facilitates the dissemination of child pornography worldwide.”

27.  It is said further in the same case that deterrence factor becomes particularly significant when sentencing for the offence of possession of child pornography and that possession of child pornography should generally attract an immediate custodial sentence unless special circumstances exist.

28.  In that case, the court set out guidelines to categorise the level of seriousness of child pornography into four categories or four levels as well as setting out the appropriate range of sentencing in general.  This court noted that in our present case there are all together 328 videos of which level 4 represents 57 per cent and level 3 represents 36 per cent.  Within level 4, the age group of children between 6 and 10 years old represent 52.13 per cent and those videos depicting children between 11 to 15-year-old, represents 43.59 per cent.

29.  There were also 11 videos involving child victims between 0 to 5 years old, eight of which depicted intercourse of toddler or very young children with adults.  There is a child victim in a level 3 video which, in fact, is a toddler still wearing a diaper.  One could see from the video that most of the child victims look helpless, unhappy or drugged, and they follow orders as directed.

30.  The parties in the level 4 video were described as a Japanese father and daughter.  One could see they looked very similar, looked very much like each other in appearance and the daughter looked like 9 or 10-year-old and she was really unhappy with a blank face throughout the sexual activity including sexual intercourse with the father.

31.  There was also a video of a tiny, very thin young black-skinned girl of around 5 to 6, having anal sex with a black adult man.  She looked totally experienced and accustomed to those acts.  There is another video where the victim described as a Laos girl, age about 5 or 6, appeared drugged during the intercourse with an adult man.

32.  These videos no doubt are revolting and anyone with a sound mind would feel really sorry for those child victims in such situations. 

33.  Since this court has viewed sample videos, in passing sentence this court warns itself of the danger as said in the Scottish case of Her Majesty’s Advocate v David William Graham, [2010] HSJAC 50, that one should be cautious of the ever-present danger of passing sentence when emotions have been raised by what one has seen.

34.  According to the defendant, the videos are for self-use only and he has not published them. 

35.  It is said that the defendant does not have any psychological and psychiatric treatment or problem or that he does not display paedophilic disorder or sexual deviance towards children, and he has only committed those offences out of curiosity and his risk of reoffending is low. 

36.  Nevertheless, the fact remains that he is in possession of 328 videos of which 57 per cent of the videos are within level 4, of which 52.13 per cent concern child victims between 6 and 10 and 4.2 per cent concerns victims of between the age of 0 to 5.  The rest, 43.59 per cent, concern child victims of between age 11 to 15.

37.  This court has viewed some of these videos as said and the prosecution has also submitted a photo album to this court comprising 143 photographs representing a sample of the captured screenshots from the photographic videos found on the defendant’s computer.  They are all repulsive and appalling and all videos concern real children.

38.  Taking into account the number of videos, especially those at level 4 and the age of child victims under 5 in the 12 videos, as well as the contents of those videos and the background of the defendant, his chance of reoffending and his relatively young age, this court considers that although the defendant is only age 23, because of the gravity of the offence and the amount and nature of the child pornographic videos in this case, the only appropriate sentencing option is one of immediate custodial sentence and there is no special circumstances justifying treatment otherwise.

39.  Having regard to the foregoing, the appropriate sentencing starting point would be 3 years’ imprisonment.  The defendant has pleaded guilty and is therefore entitled to the full one-third sentencing discount bringing the sentence to 2 years’ imprisonment.

40.  It should be noted that the guidelines in Man Kwong Choi are those for a first-time offender in possession of child pornography and that in the HKSAR v Choy Ka Leung, CACC 365/2012, the Court of Appeal reiterated that the one-third sentencing discount is usually to be regarded as the high watermark of discount given to a defendant who pleaded guilty in good time, save that the court could exercise the discretion taking into account other mitigating factors such as positive good character.

41.  It is said by his family that the defendant has a positive good character.  He has done volunteer work and has made contributions in the past and for this reason I am willing to further reduce his sentence by 2 months to 22 months.  Accordingly, the defendant is sentenced to 22 months’ imprisonment.