HKSAR v. CHAN DING BONG

DCCC 1127/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1127 OF 2015

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Reasons for Sentence

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1.  The defendant entered a plea of guilty to one charge of possession of child pornography which is contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.

2.  The particulars of offence show that offence occurred on 12 March 2015 in Sai Wan in Hong Kong, and it alleges there were 361 photographs and 88 video clips containing child pornography stored in his desktop computer. 

3.  The facts of the case have been admitted by the defendant, and that shows that on 12 March 2015, the police entered a flat in Des Voeux Road in Hong Kong where the defendant was present. They conducted a preliminary examination of the defendant’s desktop computer in his bedroom and found a video depicted child pornography.  The defendant was then arrested, the computer seized for digital forensic examination.   

4.  On that examination, 88 videos and 361 photographs depicting real persons in child pornography within the meaning of the Child Pornography Ordinance were found stored in the computer.  The files have been classified into levels.  At level 1, there were 15 videos and 291 photographs of sexual activity.  At level 2, there was 1 video and 10 photographs.  At level 3, there were 36 videos and 58 photographs.  And at level 4, there were 36 videos and 2 photographs.

5.  The defendant admitted the computer was used by him, he used it between 2011 and 2012, and that he browsed websites and downloaded files containing pornography.

6.  There was a digital forensic examination.  It confirmed that an application was used for downloading and sharing files, and that was installed on the computer.  And he also confirmed the retrieved files were frequently opened, some before the arrest occurred on 12 March 2015. 

7.  The defendant’s background has been admitted. He is of a clear record in Hong Kong.  I also in the course of examining the defendant’s background ordered reports: psychological report, a psychiatric report and a background report.

8.  Now, the defendant is aged 34.  He lives at home with his mother.  He has worked in the business of computers and was most recently employed as a consultant by Fuji Xerox Limited.  He resigned that post on 22 April 2016 in anticipation of today’s proceedings. 

9.  The conclusion of the background report is the defendant was brought up in a working-class family.  He has certain injuries, pelvic and thigh inflammations, and his brother has been assessed as mentally disabled.  Defendant, being gainfully employed, maintains a stable work pattern, being described as having a habit of watching pornography and downloading pornography to his computer.  He was not aware, he says, of the legal consequences of his possession of child pornography.  He has expressed remorse for his misdeeds and pleads for a lenient sentence. 

10.  As far as the psychiatric report, that is unremarkable.  The defendant is not suffering from a mental disorder, and there is not recommendation to be made. 

11.  As far as the psychological report is concerned, the conclusions are as follows.  The defendant is a first offender of a sex crime.  He is described as an anxious and strict individual, demands a sense of control of his environments, says he has a monotonous lifestyle with a restricted social circle and has a self-depreciating tendency which results in difficulties in developing intimate relationships, and this is attributed to the physical disadvantages that we have seen that he had in the past. 

12.  There is an absence of evidence suggesting clinical significant psychological disorders or paedophilia.  Because of that, psychological treatment is deemed unnecessary at present.  In fact, there is no evidence warranting a diagnosis of paedophiliac disorder.  The defendant’s risk of recidivism is described as dynamic with varying responses to changes in personal and environmental factors.

13.  As far as general mitigation is concerned, I have been pointed to a number of factors that it is considered the court should consider when determining the sentence to be imposed on the defendant.

14.  As far as his personal factors are concerned, he is remorseful.  That is clear.  His plea of guilty and his position in relation to the reports that have been obtained said he was not - and this is again confirmed by the reports - entirely aware of the seriousness of possession of this particular form of pornography.  He has no paedophiliac tendencies.  So following this offence, he is unlikely to re‑offend, has no identifiable mental disorders of any kind.   

15.  In relation to the materials themselves, it would appear they are obtained by way of what are called data downloads.  There are none of the other aggravating factors beyond the possession of child pornography itself.  There is no what is described as extreme youth in the photographs although there are photographs of what are described as very young children.  There is no dissemination of the material and no photographs of what is called additional maltreatment or cruelty of the children involved.  And the third factor to be taken into consideration in mitigation is said to be his family support for him and, aside from this, his general hardworking nature and possession of a clear record.

16.  As far as the starting point of sentence in this particular kind of offence is concerned, there are a number of relevant authorities, and there has been a guideline sentence in relation to child pornography in existence since 2008.  That is the case of Secretary for Justice v Man Kwong Choi, a Court of Appeal case which is Applications for Review 8 and 9 of 2007 listed as [2008] 5 HKLRD 519.

17.  The authority refers to the different levels of seriousness of child pornography and classifies them into four different levels in the same way that the admitted facts have done the same classification and indicates the sentences of imprisonment or otherwise that can be attracted by possession of that particular form of pornography.

18.  Now, of relevance here is level 4 which is described as penetrative sexual activity between children and adults or sadism or bestiality.  These images and video recordings merit the most serious treatment as a custodial sentence is generally of 12 months even for a few images to 36 months are to be imposed.  It is agreed that within that level, a number of images exist: 36 video recordings and 2 photographs.  So it is accepted on behalf of the defendant that a sentence of imprisonment is appropriate in this case, it will be of immediate effect, and that the starting point for sentence should range between 12 to 36 months’ imprisonment. 

19.  The court is to look for aggravating features which would obviously include a similar offence, the age of the children involved.  Where particularly young children are involved, this is an important consideration.  Thirdly, the purpose for which the accused possessed the depictions.  Where it is proved the accused intended to disseminate the images for commercial gain or publication, that is seen as a significant aggravating factor.  And, finally, the number of images.

20.  I have been referred to a number of cases that contain discussions of approaches to sentencing by various courts since Man Kwong Choi and represent the way in which the courts have approached the determination of starting points of sentence in relation to these offences and that is, well, to say each case is determined by its own particular facts, what one can describe as a balancing of the aggravating factors, and the mitigating factors involved.   

21.  Of importance it does appear to be the number of images and the kind of activity that the images cover.  I note in this case of course there is no similar offence, and the defendant possessed the images for his own purposes.  There was no dissemination of the images or intent to publish, and the number of images put it in what I would call the more average category.  The images themselves do of course involve young children and do involve distressing depictions of sexual activity by such images.

22.  Having taken all the factors into consideration that are in evidence, I consider that an appropriate starting point of sentence in this case is one of 24 months’ imprisonment.  The defendant is entitled to a one-third discount which leads to a final sentence of imprisonment in this case of 16 months’ imprisonment, and that is the sentence I will impose on him.