HKSAR v. NG TSZ LUNG

DCCC 833/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 833 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to an amended charge of possession of child pornography.

2.  The facts admitted by the defendant were that on 5 June 2012, at 6:00 am , police officers executed a search warrant at the defendant’s home at Room 2, 10^th Floor, Lung Chu House, (Block C), Lung Poon Court, Wong Tai Sin, Kowloon, Hong Kong (“the premises”).

3.  The defendant and his mother were present inside the premises.  PC 8786 showed them the search warrant and explained to them the purpose of their raid.  The defendant admitted to the police officer that he had downloaded child pornography materials from the internet.  PC 8786 therefore arrested the defendant for the offence of ‘Possession of Child Pornography’.  Under police caution, the defendant admitted that he committed the offence out of curiosity.  He told the police officer that the child pornography materials were saved in a computer placed inside his bedroom.  When inside, the defendant showed the police officer two photo image files stored in the said computer which contained child pornography materials.

4.  The said computer was seized by the police and upon examination, the police found “peer to peer programs” installed in the hard disc, which enabled users to download all types of files from the internet.

5.  A number of items including photographs and video clips were retrieved from the said computer. Amongst them, there were 2,611 photographs and 126 video clips which contained child pornography materials.

6.  The photographs and video clips were grouped under the following categorizations:-

(a) Level 1, being images depicting erotic posing with no sexual activity – 2,609 photos and 9 video clips;

(b) Level 2, being images depicting sexual activity between children, or solo masturbation by a child – 26 video clips;

(c) Level 3, being images depicting non-penetrative sexual activity between adults and children – 1 photo and 24 video clips; and

(d) Level 4，being images depicting penetrative sexual activity between children and adults, sadism or bestiality – 1 photo and 67 video clips.

7.  The photographs and video clips featured different persons who apparently were between 5 – 15 years of age. 

8.  I had viewed the two photos which were categorized as level 3 and 4 respectively.  They were images of a man penetrating a young girl’s private part and a man performing fellatio to a young girl.  I also viewed a number of still shots extracted from the video clips, which the Prosecution said were representative samples of all the video clips which were categorized as level 4.  Those images included young girls: being tied up and having oral sex with men; appearing to be raped by men; being penetrated by an external object; or having anal sex with men. Words failed to describe the sense of disgust and revulsion brought to one by those images.

9.  The defendant has a clear record.  He is 25 years of age.  He completed Form 5 education in Hong Kong and obtained a degree in analytical science in 2009-2010.  He worked as an assistant at a laboratory in Kowloon Bay area and earned an hourly salary at thirty-three Hong Kong Dollars but was laid off after one year.  The defendant wrote to court to express his remorse and pleaded for leniency.

10.  The defendant’s parents were divorced.  His mother was the breadwinner of the family and she cared very much for her son.  However, the defendant perceived her to be dominating and demanding.

11.  After the discovery of the offence, the defendant consulted a psychiatrist and was advised to attend the Caritas Community Support Project on Development of Sexual Health.  The defendant attended the programme between June and September 2012 for five times to receive proper sex education.  He was then admitted to the rehabilitation programme at St. Stephen’s Society on 2 October 2012.  The aim of the programme was to help the defendant understand and deal with his problems.  According to a letter submitted to court from St. Stephen’s Society, the defendant has demonstrated remorse and made progress during rehabilitation.

12.  When the defendant pleaded guilty to the offence two weeks ago, I adjourned the case so that I could have the advantage of a psychiatric and a psychologist’s report. 

13.  According to the psychology report, the defendant is a passive and solitary individual with low self-esteem, relatively weak in problem solving and consequential thinking abilities.  He is likely to be short sighted and pays no heed to the consequences of his actions.  The defendant is suspected to have pedophilic tendency that merits professional attention.  His risk of re-offending similar offence is assessed to be moderate.  It is believed that psychological service focusing on heterosexual relationship, management of sexual need, and deviant sexual interest may be beneficial to him.  That said, the defendant was not interested in receiving psychological intervention of any kind.  The psychiatric report is unremarkable.

14.  I noted in this case that whilst only two of the 2,611 photos depicted gross sexual activities between adult and children, there were 67 video files, more than half of the video files recovered, which were at the highest pornographic level.  The video files depicted real children, apparently between 5 and 6 years of age engaging in depraving sexual activities with adults.

15.  In sentencing the defendant, I consider the sentencing guidelines set out in the case of HKSAR v Man Kwong Choi [2008] 5 HKLRD 519.  The range of custodial sentences for Level 4 cases should be from 12 (even for a few images) to 36 months.

16.  There is no evidence before me that the pornographic materials were disseminated for commercial purpose.  Yet, this was not an accidental downloading of child pornography. The defendant actively sought out child pornography to download.  Persons downloading such material play a significant part in enabling this pernicious trade to flourish and this could only mean that more children, including very young children, would be subject to abuse to provide films for this market.

17.  There are aggravating features present in this case, including the large amount of serious pornographic items involved; and the depictions of very young girls being subjected to atrocious, depraving and perverted sexual activities with adults.

18.  Defence counsel submitted that the present case was less serious than in the case of HKSAR v Choy Ka Leung CACC 365/2012.  In that case, the Court of Appeal dismissed the Applicant’s application for leave to appeal against a sentence of 22 months imprisonment for possessing 2,457 photographs and 157 video clips of child pornography materials.  The Applicant was 35 years old with a clear record. The judge below adopted a starting point of 3 years’ imprisonment and reduced the sentence to 22 months imprisonment after taking into consideration other mitigating factors. 

19.  Defence counsel submitted that the defendant was younger than the said Applicant and possessed fewer serious pornographic materials.  He urged the court to adopt a lower starting point than in Choy Ka Leung’s case.  I do not agree with counsel’s submissions.  Apart from the fact that the quantity of pornographic materials are similar in both cases, there are many more video clips at the highest pornographic level in the present case than in Choy Ka Leung’s case.

20.  Further, I do not consider the difference in age to be a mitigating factor which I can properly consider.  Men between the ages of 25 to 35 have the same desire for and curiosity in sex, but they should be matured enough to manage and channel their sexual needs and desires in a proper way. 

21.  A number of the defendant’s relatives, his principal at secondary school, the Director at St. Stephen’s church and the program supervisor of the Caritas Community Support Project all wrote to court to plead for leniency on his behalf.  In particular, the mother of the defendant wrote an earnest letter to court pleading for a chance to allow the defendant to turn over a new leaf.  I am not prepared to give discount of sentence based on their mitigation.  As stated in paragraph 20 of Choy Ka Leung’s case, if mitigating letters from colleagues, friends and relatives invariably had the effect of successfully persuading a sentencing judge to reduce what was otherwise a proper sentence, the courts would be inundated with such letters and it was not a practice that should be encouraged.

22.  The principal mitigating factor in this case is the defendant’s timely guilty plea.

23.  Applying the principles and guidelines set out in the case of Man Kwong Choi and taking into account the number of pornographic items, their nature, the ages of the children involved and the personal circumstances of the defendant, including his clear record; cooperation with the police during investigation and initiative in seeking professional help soon after the offence, I decided to adopt a starting point of 33 months.  I will give him the full one-third discount to 22 months to reflect the defendant’s guilty plea.  The defendant is sentenced to 22 months imprisonment.