HKSAR v. CHONG MAN SHUN

DCCC 659/2023

[2024] HKDC 1617

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 659 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Possession of child pornography".

Summary of Facts

2.  On 12 October 2021, the Police executed a search warrant at the defendant's home situated at Tai Hing Estate, Tuen Mun.

3.  Upon search, the defendant's Samsung mobile phone ("the Mobile Phone")  was seized. Preliminary inspection found that it contained a video clip (1 minute and 57 seconds in length)  depicting an underage girl (a real person)  showing her genitals and being sexually molested ("the Video Clip").  Under caution, the defendant admitted that he had downloaded the Video Clip from the internet out of momentary curiosity.

4.  In his video recorded interview (VRI)  conducted on 12 October 2021, the defendant admitted that the Mobile Phone belonged to him and he was its sole user.  One day between September and October 2021, he downloaded the Video Clip at home through a hyperlink.  He also admitted having watched the Video Clip for 10 odd seconds.  The defendant believed the age of the girl depicted in the Video Clip to be 14 to 15.  He claimed that he did not upload the Video Clip, share it with or disseminate it to anyone. He left the Video Clip stored in the Mobile Phone without deleting it.

5.  On 16 November 2021, the Mobile Phone was examined by the Cyber Security and Technology Crime Bureau of the Police Force.  It was found to contain another 126 video clips of child pornography.  The children depicted in the 127 video clips were all under 16.  The video clips are categorized as follows :-

(a)  Level 1 (images depicting erotic posing with no sexual activity)  – 11 video clips;

(b)  Level 2 (images depicting sexual activity between children or solo masturbation by a child)  – 17 video clips;

(c)  Level 3 (images depicting non-penetrative sexual activity between adults and children, including any digital touching of genitalia)  – 10 video clips; and

(d)  Level 4 (images depicting penetrative sexual activity between children and adults, including digital penetration, penetration by sexual organs or other objects, masturbation or oral sex; sadism or bestiality)  – 89 video clips.

6.  The estimated age of the children depicted in the video clips were mainly between 7 and 12 years old (81 video clips or 64%); with some between 0 and 6 years old (37 video clips or 29%)  and a few between 13 and 15 years old (9 video clips or 7%).

7.  In respect of the Level 2 video clips, 1 shows penetration without using condoms; and 4 show insertion of foreign objects into the child's private parts.  In respect of the Level 3 video clips, 1 shows the child being blindfolded.  In respect of the Level 4 video clips, 29 show sexual intercourse without using condoms; 7 show insertion of foreign objects into the child's private parts; 5 show ejaculation onto the child's face/body; 3 show ejaculation inside the child's private parts or anus; 5 show the child's distressed expressions; 2 show group sex; 5 show very young age; and 1 shows the child being blindfolded.

8.  In his VRI conducted on 21 April 2022, the defendant admitted that he downloaded the video clips of child pornography using the Mobile Phone at home during the first half of 2021.  He downloaded them for his own viewing out of curiosity. He did not share them with anyone or disseminate them to others.  He has viewed about half of the video clips.

Mitigation & Sentence

9.  The defendant is 30 and has 1 criminal conviction (dated 2016)  involving a gambling offence for which he was given a Community Service Order.  Defence counsel Mr. Cheung informed me that the defendant is single and works as a deliverer in a logistics company earning about $15,000 per month.  His employer commented that he is punctual, polite, efficient, hardworking and responsible.

10.  In mitigation, Mr. Cheung submitted that the defendant was foolish and underestimated the seriousness of the present offence.  His sexual curiosity prompted him to watch the video clips.  Furthermore, the defendant did not know that after watching the video clips, the link would automatically download the files and store them in his mobile phone.  This explains why the Police initially found 1 video clip on the Mobile Phone and later on discovered another 126 video clips stored in it.  Mr. Cheung stressed that the defendant has only watched about half of those video clips.  He is truly remorseful.  Finally, Mr. Cheung submitted that the defendant has endured tremendous stress in the past 3 years.

11.  Although Mr. Cheung considers that the defendant has no psychological issues, I decided to call for a Psychologist's Report just to be prudent.  The Clinical Psychologist made the following remarks :-

"11. Present assessment does not indicate gross psychopathology. The remand impresses to be a family-oriented and overall prosocial young adult, maintaining gainful employment and romantic relationships. …Increasing parental conflicts and the separation with his most beloved girlfriend preceded the index offence. He showed patterns of emotional avoidance and suppression when he coped by playing video games, reading anime and comics to forget about his distress... However, his reservation to confide his psychosexual background and the index offence largely limited the generation of an adequate psychological explanation of his offending behaviour…

14. …Given the absence of antisociality and sexual deviance, including sexual preference in prepubescent children, his risk of sexual re-offending is tentatively deemed in the low end of the moderate spectrum. He has very limited insight into his personal weakness but showed certain readiness for positive change with professional intervention upon cultivation of awareness…"

In her conclusion, the Clinical Psychologist recommended psychological intervention which targets the defendant's emotion regulation problem and sexual pre-occupation.

12.  I note that 89 out of the 127 video clips found in the Mobile Phone belong to Level 4.  I have viewed the photo albums submitted by the prosecution.  The images are no doubt repulsive and disturbing.  Apart from the depiction of their nudity and sexual activities, I see no additional maltreatment of or cruelty to the children (such as being tied up, gagged, caged or handcuffed).  On the other hand, sexual intercourse without using condoms; and ejaculation inside the child's private parts or anus are particularly harmful to the children.

13.  According to the Chronology of Events submitted by the prosecution, the defendant was arrested in October 2021.  He was not charged until May 2023, more than 1.5 years later.  The defendant first appeared in the magistracy on 30 May 2023.  This case reached the District Court on 25 July 2023.  After 2 mention hearings and on 9 January 2024, the defendant indicated his intention to plead guilty to the charge.  This case was then listed for plea & sentence on 27 August 2024.

14.  After cloning the Mobile Phone and conducting a 2^nd VRI with the defendant, the Police took a year to review the 127 video clips to identify aggravating features and to prepare photo albums.  The total length of the 127 video clips was 14 hours and 37 minutes.  I readily accept that the Police has been overloaded with work since 2019 and during the pandemic; however, the investigation of this case is straightforward.  Heavy workload and backlogs cannot be used as a generic excuse.  A time gap of 19 months from arrest to laying charge seems excessive in the present case.  I shall make appropriate adjustments to the sentence to reflect the element of delay.

15.  I have borne in mind the sentencing principles laid down by the Court of Appeal in HKSAR v Choy Ka Leung CACC 365/2012.  I am also aware that for Level 4 depiction of child pornography, an immediate custodial sentence in the range of 12 to 36 months[1] is warranted.  Having considered all relevant factors, I adopt a starting point of 27 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 18 months.  I will also grant a discount of 1 month for the delay.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 17 months' imprisonment.  I invite the Commissioner of Correctional Services to arrange for the defendant to receive the necessary psychological treatment.