HKSAR v. LAW CHI HUNG

DCCC 457/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 457 OF 2013

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Reasons for Sentence

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

2.  The facts admitted by the defendant state that at 6.40 on 2 May 2012 police officers executed a search warrant at his home in Nam Cheong Street, Sham Shui Po.  At that time, present inside the premises were the defendant, his parents and his younger sister. 

3.  A technical officer of the Technology Crime Initial Response Cadre examined the defendant’s desktop computer in his presence. Using the password supplied by the defendant, the officer gained access to the computer and retrieved pornography video files and image files and he used a USB to take copies from those files.

4.  The defendant was arrested and initially on his arrest he said the computer was used by him and it had nothing to do with the rest of his family.

5.  In a recorded interview at the police station, the defendant said that the broadband for the computer was subscribed by his mother for about seven years.  The desktop computer in his room was used only by himself.  It had never been sent for service. 

6.  He admitted that he had seen the child pornography downloaded and stored in his computer and he knew that it was child pornography.  He said that he had downloaded them about a year previously.  He said that he did not intend to download them for distribution and there was no evidence in this case of any attempt to distribute.  He said his parents and the rest of his family knew nothing about the child pornography and he alone knew the password for the computer.  He guessed that the children in the pornography were around 10 years of age and he could tell that from the video name, which described the girls as being 8 to 10 years of age. There was no child pornography on any of the external hard disks.

7.  In a second video recorded interview, the defendant told the police that he had finished the Hong Kong Institute of Vocational Education.  He said that he had studied Japanese for a year.  He said he came to know a software named “eDonkey” since 2008 to download child pornography materials.  He admitted that he had downloaded the video clips, which had been retrieved by the police, himself. 

8.  As regards the classification of the items seized, an officer viewed the pornography and classified the images and video files into four levels of child pornography, in accordance with the case of the Secretary for Justice v Man Kwong Choi, CAAR 8/2007, and the Secretary for Justice v Ho Yan Kiu, CAAR 9/2007.  The quantity of image files recovered was seven and all of those were at level 4.  The quantity of video files recovered was 169 and 131 of those was at level 4.

9.  The defendant has a clear record.  He is 24 years of age and, as he told the police in the record of interview, he had completed a course at the Hong Kong Institute of Vocational Education.  He lives at the address where he was arrested, together with his parents and younger sister.  At the time of his arrest, he was working as a aircraft maintenance technician and he had that employment since 2011.

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

11.  I now have those reports. 

12.  According to the psychiatrist who saw the defendant, he said that the defendant is heterosexual in orientation.  He said that he had never been in a courtship before and said that he was not particularly keen on it as he did not believe he could acquaint any female with his social status.  He mainly channelled his sexual needs by masturbation once or twice a month.  He first got to view the pornographic materials when he was in secondary school and he said he mainly watched videos with content for adult sexual intercourse.  

13.  The report goes on to state that, for reasons which the defendant could not clearly articulate, he began downloading videos showing children engaging in sex two years previously.  He stated that he actively searched for videos of such theme by typing in keywords such as “kid” in the computer search engine.  He claimed that he only took glimpses of them and was never sexually aroused by the scenes depicted. 

14.  However, as noted by the psychiatrist, the defendant was unable to explain why he actually kept downloading them on more than 100 occasions and, when pressed for an explanation, he simply said that he was bored.  He strongly denied having any paedophilic or paraphilic interests.

15.  The opinion and recommendation of the psychiatrist is that the defendant does not have any active psychiatric problem but possibility of paedophilia could not be ruled out at this juncture given the denial of the defendant and the discrepancies between his allegation and his behaviour.  Inpatient psychiatric assistance was not warranted in this case but psychological follow-up was deemed to be helpful.

16.  The psychologist’s report goes over much of the material covered by the psychiatrist and it emphasises the fact that the defendant has lived a life without many friends and with no girlfriends.  It says that no major psychological problems were revealed in the assessment and he impressed the psychologist as being emotionally aloof with exceptionally low social need and, therefore, limited need for an intimate relationship.

17.  The psychologist opined that the present child pornography offending was likely to be related to negative peers who reinforced his regular pornographic use, coupled with the absence of normal sexual outlet, restricted social life and the absence of intimate relationship and ample free time.

18.  It is recommended that he receives psychological assistance and I am told that both the defendant and his father, when they saw the psychologist, showed positive support for the recommendation.

19.  A letter from the defendant has been submitted to the court.  In that letter, the defendant expresses his remorse and regret for his involvement in these offences and he says that he would cooperate in the future with the psychological support.

20.  Sadly, the defendant’s father is suffering from cancer and the defendant says in his letter that he is very concerned about that situation and he is also concerned about the anxiety which the current offences have caused to his parents and the rest of his family. 

21.  I noted that in this case that of the 169 video files recovered, the vast majority, 131 were at the most pornographic level.  The video files include not only children of 8 to 10 but much younger children and they show scenes of violence towards those children.

22.  It was clear that the material which he downloaded did relate to child pornography.

23.  This was not an accidental downloading of child pornography.  He actively sought out child pornography to download.

24.  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.

25.  As regards sentence, I consider the sentencing guidelines set out in the case of HKSAR v Man Kwong Choi [2008] 5 HKLRD 519, which states that the range of custodial sentences should be from 12 to 36 months, even for a few images possessed by a person of clear record.

26.  I take into account the material was for the defendant’s own use and was not organised into any form of library.

27.  I have the greatest sympathy with the defendant’s parents and the rest of his family and I accept that they were completely unaware of what was taking place.

28.  However, 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 and cooperation with the police, I decided that a starting point of 30 months was appropriate and I propose to reduce that by one-third to 20 months to reflect the defendant’s guilty plea.