CHUNG KAI YEUNG v. HKSAR

HCMA 187/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 187 OF 2011

(ON APPEAL FROM TMCC 636/2011)

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BETWEEN

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JUDGMENT

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1.  The appellant pleaded guilty before a magistrate to a single charge of possession of child pornography contrary to s.3(3) of the Prevention of Child Pornography Ordinance, Cap. 579. He was sentenced to undergo imprisonment for a period of 12 months, the magistrate having taken a starting point of 18 months and reduced it for the plea. He appeals that sentence.

2.  The appellant had in his possession, saved to his computer, seven image files containing images which were categorised, in accordance with the approach adopted by the Court of Appeal in Secretary for Justice v MAN Kwong Choi [2008] 5 HKLRD 519 §7 as Level I and 12 video files of which two were said to be at Level I, four at Level 3 and six at Level 4. The magistrate was provided with a schedule, in accordance with the long-established practice in the magistracy, which summarised the contents of the offensive items. It also contained an estimation of the ages of the children depicted which ranged between approximately 7 and 12 years old. That schedule contains, in my view, at least one error where the conduct is categorised at a lower level than is appropriate: this is an error which redounds to the benefit of the appellant.

3.  The magistrate was well aware of the guidelines laid down by the Court of Appeal as set out in MAN Kwong Choi. After noting that the appellant was a 47-year-old air conditioning technician; he was married with two young children; that the pornographic material was small in quantity; and that the appellant asserted that he would not reoffend, the magistrate said:

I was most concerned about the six video files containing pornographic material of Level 4 category. Five of the video files contained material of sexual intercourse between a male and a girl of the estimated age of 12. One video file contained bestiality; a girl of the estimated age of 10 could be seen performing oral sex on and animal and having oral sex performed on her by an animal. I took as my guide on sentence the case of Man Kwong Choi... Therein it was stated that the range of custodial sentence should be from 12 months to 36 months even for a few images in the case of being essentially of clear record and I took into account the small number of files involved. I believed that the appropriate starting point was one of 18 months imprisonment. I reduced the sentence by one third to give credit for his plea of guilty and therefore sentenced him to 12 months imprisonment.

4.  The grounds of appeal assert that the magistrate misinterpreted MAN Kwong Choi; failed to recognise that in an associated application for review a sentence of two years imprisonment was appropriate for a much larger quantity of pornographic material; failed to note that the maximum sentence for the offence is two years imprisonment; erred by failing to take a starting point of 12 months imprisonment; erred by failing to give recognition to the fact that only a small quantity of pornographic material was involved and that the applicant had only watched a part of the videos.

5.  The magistrate, contrary to the appellant's assertion, was fully aware of the quantity of pornographic material involved: he said so in terms. I have difficulty with the suggestion that the fact that the appellant claims to have watched only portions of the video recordings is any matter of mitigation. His claim that they were "not what he wanted" is problematic given the fact that he retained the images on his computer. The magistrate would also have been aware that the ages of the appellant's own two children, a boy and a girl, fell within the range of ages of the children whose sexual abuse he condoned.

6.  A magistracy appeal is a rehearing before this Court on the material before the magistrate. It is not a question of whether the magistrate was right or wrong in the sentence he imposed, or solely whether the sentence was manifestly excessive or wrong in principle: those of course will be factors but it is always necessary for this Court to determine the appropriate sentence in the circumstances. Applying the principles and guidelines in MAN Kwong Choi without repeating them and taking into account the number of pornographic items; their nature; the ages of the children involved; and the personal circumstances of the appellant the appropriate sentence, in my judgment, after allowing the usual reduction for the plea of guilty is one of 10 months imprisonment.

7.  The sentence imposed by the magistrate is set aside. The appellant is to serve 10 months imprisonment.