HKSAR v. LAM CHO FAT

DCCC 527/2020

[2020] HKDC 994

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 527 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance[1].

2.  Full particulars of the offence are set out in the amended summary of facts admitted by the defendant on 6 October 2020.  Before passing sentence I called for a psychological report to know more about the defendant.

3.  In summary on 16 January 2019 the police executed a search warrant at the defendant’s home.  The police seized from the defendant’s bedroom his desktop computer, which on a preliminary examination was found to contain child pornography. 

4.  Under caution and in a video recorded interview, the defendant, inter alia, admitted downloading the child pornography from the internet by using key words to search for child pornography.      

5.  Upon further examination a total of 449 photographs and 17 video clips of child pornography were found on the computer.  All the photographs and all except one of the video clips are of real children with the ages ranging between 6 and 15.

Mitigation

6.  In passing sentence, I have carefully considered the oral and written submissions of Mr Lau, including that the defendant, who is 41 and single, works as a delivery worker[2]. 

7.  I take into account that the defendant has no previous convictions.  The defendant says the child pornography was downloaded for his own use and was not shared with others[3].  Mr Lau has summarised the defendant’s mitigation letter in which the defendant asks for leniency and a chance to turn a new leaf[4].

8.  I take into account that the defendant supports his parents who are both of ill-health[5].  Mr Lau has also summarised letters written by the defendant’s parents, his younger brother and his colleagues[6]. All describe the defendant as a good person who looks after his family, works hard and helps others.  The defendant’s younger brother and Mr Lai, his friend and colleague who has written one of the mitigation letters, are in court today and will support the defendant after he is released from prison. 

Psychological report

9.  The report describes the defendant as introverted, lonely and passive.  After breaking up with his girlfriend in 2012 the defendant developed a mistrust and fear of abandonment in interpersonal relationship and became socially withdrawn, keeping his distance from females[7].

10.  The defendant began to download and use child pornography to fulfil his sexual novelty and gratification.  The defendant experienced sexual arousal and masturbated to the child pornography[8].

11.  The defendant denied having any sexual attraction towards young girls.  The clinical psychologist states that there is no sufficient evidence suggesting that the defendant has any psychopathology or deviant sexual interest[9].

12.  Whilst showing some remorse and victim empathy the defendant lacked insight into his problems.  Given the defendant’s age, criminal history, victim characteristics and the nature of the present offence, the clinical psychologist assesses the risk of recidivism of sex offences of a similar nature as moderate[10].

13.  Psychological treatment targeting the defendant’s deviant sexual interest, heterosexual skills, emotion coping skills and prevention of future reoffending is suggested. Mr Lau informs the court that the defendant having been seen by the clinical psychologist three times realises his problem and is willing to seek psychological treatment whilst in prison and after his release.  Mr Lau submits together with family support the risk of reoffending is reduced.    

Guidelines

14.  In the Secretary for Justice v Man Kwong Choi the Court of Appeal laid down guidelines as to sentence for possession of child pornography[11].  In setting the guidelines the Court of Appeal considered the classification levels adopted in England together with the factors relevant to sentencing referred to in R v Oliver[12].

15.  The Court of Appeal adopted four classification levels of child pornography involving real children:  Level 1 – images depicting erotic posing without sexual activity; Level 2 – sexual activity between children or solo masturbation by a child; Level 3 – non-penetrative sexual activity between adults and children; and Level 4 – penetrative sexual activity between children and adults, and sadism or bestiality. 

16.  The Court of Appeal considered Level 4 cases as meriting the most serious treatment and said the range of custodial sentences should generally be from 12 months to 3 years.  The Court of Appeal also listed a number of aggravating features including the age of the children depicted and the number of images. 

17.  The child pornography is of real children with ages ranging from 6 to 15.  The classification of the photographs and video clips are as follows:

Level 1 – 184 photographs and 1 video clip

Level 2 – 11 photographs and 2 video clips

Level 3 – 55 photographs and 0 video clips

Level 4 – 199 photographs and 14 video clips

18.  In Secretary for Justice v Man Kwong Choi the Court of Appeal emphasised the importance of the sentencer examining the images or, at the very least, a representative sample, so that their true nature and gravity is made apparent[13]. 

19.  The prosecution has submitted to court two albums containing all the photographs together with a photograph album comprising of 17 screen captures from the video clips.  I have looked at the photographs and also viewed part of the video clips.

20.  They are nothing short of repulsive and disgusting.  Most disturbing are photographs showing hard objects being inserted in the private parts of a young girl (see photographs 260, 263, 266, 268, 270 and 273).  The same girl, whose underpants are torn, has her mouth taped, hands taped to her legs and subjected to oral sex and intercourse with hard objects also inserted in her private parts and bottom (see photographs 358-390 and 397-405).

21.  Video clips 6 and 7 are the same clip as clips 10 and 16.  The duration of the video clips, excluding the duplicate video clips, is over ten hours.  The majority of the video clips show acts of intercourse between adults and young children. The longer video clips show multiple acts of intercourse.  The titles of video clips 3, 4, 5, 6, 7 and 8 refer to young girls as prostitutes. 

22.  As said in R v Oliver assaults on very young children attract particular repugnance and may by the conduct depicted in the image indicate the likelihood of physical injury to the private parts of the children. 

23.  In passing sentence I take heed of what was said in the Scottish case of Her Majesty’s Advocate v David William Graham that if the sentencer thinks appropriate to view all or a sample of the images, he should be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen[14].

The number of photographs and video clips

24.  The number of images was said in Secretary for Justice v Man Kwong Choi to be a relevant factor in considering whether there are aggravating features of sentence.  Similarly, in R v Oliver the Court of Appeal said if there is a large number of images this is capable of aggravating the seriousness of a particular offence. The court went on to say that it is impossible to specify precision as to numbers and sentencers must make their own assessment of whether the numbers are small or large.

25.  In R v Somerset the court said that it was unrealistic to suggest that video films should be regarded as the equivalent of a single still image, in particular when some of the films ran for several minutes, and in one case for nearly fifteen minutes[15]. The court said that a sensible assessment and adjustment would therefore be needed where video footage was involved. 

26.  R v Somerset was referred to in Her Majesty’s Advocate v David William Graham where the court said that whether a video clip is worse than a still image will depend in every case on its length, on what it depicts and how it depicts it.  Without attempting any detailed arithmetical computation, the court said the sensible approach is simply to make an allowance for the fact that a moving image may be more vivid and corrupting than a still image, however the primary factors to which a sentencer must have regard remain the nature of the images and the extent of the offender’s involvement with child pornography.

27.  Although there were only 17 video clips as noted already the duration of the video clips is over ten hours.  The duration ranges from seconds to over two hours, the longer video clips showing multiple acts of sexual intercourse between adults and young children.

28.  In Secretary for Justice v Chan On Shun, a case cited by Mr Lau, the Court of Appeal said 43 video files was not a small quantity[16]. I also do not regard 449 photographs and 17 video clips with a duration of over ten hours with nearly half the photographs and most of the video clips being at Level 4, as a small quantity. 

29.  Mr Lau refers the court to three cases where the Court of Appeal held that starting points of between 18 months and 3 years’ imprisonment were appropriate[17].    

30.  In Secretary for Justice v Man Kwong Choi the total number of images was 1157 and video files was 245, which the Court of Appeal regarded as large[18].  187 images and 69 video files were at Level 4 and Level 5[19]. The images were all of real children with apparent ages between 5 and 12, with more than half the images showing children with adults.  The defendant who possessed the images for his personal use was 31 with one previous conviction for indecent assault on a girl aged 12.  The Court of Appeal said a sentence of 3 years’ imprisonment should have been imposed.

31.  In Secretary for Justice v Ho Yan Kiu the total number of images was 8290 and video files was 205[20]. 200 images and 48 video files were at Levels 4 and 5[21].  The majority of the images were Level 1 with significant amounts under Levels 2, 3 and 4.  The children in the images ranged between 0-15 and 634 images involved children with adults.  The defendant who possessed the images for his personal use was under 21.  The Court of Appeal said a Training Centre order would have been appropriate and if he had attained the age of 21 a sentence of 2 years’ imprisonment would have been appropriate.

32.  In Secretary for Justice v Chan On Shun, the Court of Appeal were of the view that 18 months’ imprisonment was the appropriate starting point for downloading 43 video files showing children of ages around 6 to 16, including 21 at Level 4[22].

33.  Taking into account the number of photographs and the duration of the video clips and that nearly half the photographs and most of the video clips were at Level 4, I am satisfied a starting point of 2 years and 3 months’ imprisonment is appropriate[23].

34.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment.

Delay

35.  Mr Lau refers the court to Secretary for Justice v Chan On Shun where the Court of Appeal reduced the sentence by three months by reason of an avoidable delay of about 7 months, other mitigating factors and that the application was a review of sentence[24].

36.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[25].

37.  Ms Poon has submitted to court a two-page chronology of events from arrest to appearance in the District Court.  The defendant was arrested on 16 January 2019 and charged just over 17 months later on 5 June this year.  Ms Poon explains this was because of the workload of the CSTCB in conducting digital forensic examinations.

38.  Whilst time was clearly required to examine the desktop computer this does appear to be a long time.  Over 21 months have now elapsed since the arrest of the defendant.  Arguably the matter could reasonably have been brought to court earlier than it was.  I am satisfied some credit should be given in sentence for this delay[26].  In all the circumstances I reduce the sentence by 1 month imprisonment. 

39.  The defendant is convicted and sentenced to 1 year and 5 months’ imprisonment.                    

40.  The defendant having indicated that he is willing to receive psychological treatment while serving sentence, I direct that the defendant receive psychological treatment as deemed appropriate by the Correctional Services Department.