HKSAR v. CHAN HEI CHI

DCCC 407/2021

[2021] HKDC 873

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 407 OF 2021

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Reasons for Sentence

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1.  The defendant pleaded to one count of possession of child pornography, contrary to section 3(3)  of the Prevention of Child Pornography Ordinance, Cap 579.

2.  The particulars are that on 26 April 2018 at home, he had in his possession child pornography, namely 40 video clips containing child pornography stored in his desktop computer.  The defendant has admitted the Summary of Facts. 

3.  During an anti-child pornography operation, the police suspected that child pornographic material was found to have been downloaded at an IP address located in the defendant’s premises.  On the material day, they raided the premises with a search warrant.  During the search, child pornographic material was found stored inside the defendant’s desktop computer.  He was arrested. 

4.  After his arrest and under caution at the scene, the defendant admitted that he had downloaded the child pornography for his own viewing.  He did not disseminate any of the material to others.  He had not published any of it ever. 

5.  He was interviewed twice under caution in April 2018 and February 2020.  He co-operated fully with the police and made full admissions.  The police have classified the 40 video clips retrieved according to the guidelines set out by the Court of Appeal in HKSAR v Ipp Tin Fan [2016] 4 HKLRD 486 and Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519.  The classification meant that 4 videos were Level 2, 1 video was Level 3, and 35 videos were Level 4. 

6.  In order to assist me with sentencing, the police have put together a photograph album of stills taken from the videos with a description followed by the category level, MFI-1. 

Mitigation

7.  The defendant is now 24 years old.  At the time of his arrest, he was 21, and I am told at the time he downloaded these videos he was even younger.  He is a young man with a clear record.  His parents divorced when he was very young and he was brought up by his mother.  His family and childhood was difficult and fragmented; he has a younger sister. 

8.  I have heard everything that can be said on his behalf in mitigation.  I have the assistance of a background report and a psychologist’s report.  His best mitigation is his plea of guilty.  Despite learning difficulties, dyslexia, the defendant tried his best at school and turned to vocational training to better himself.  He attended a four-year apprenticeship programme in 2014 and completed a Diploma in Electrical Engineering specifically related to lifts and escalators, becoming certified in 2019.  As an apprentice, he earned $15,000 a month, which was increased to $19,000 when he completed his apprenticeship and certification. 

9.  Despite his arrest in April 2018 whilst still an apprentice, he did not give up and continued to study and complete his certification.  He has even gone on to complete a master’s certificate, a further qualification and is now earning $21,000 a month.  He has just resigned from his employment in anticipation of serving his sentence now his day of reckoning has come. 

10.  To improve the living condition of his mother and sister, he purchased a property in Tai Po and is wholly responsible for the mortgage repayments.  Most of his salary is given to his mother to support the household and the mortgage.  I have seen letters from his mother and younger sister.  I do not intend to repeat the contents but he is a filial son, hardworking and a very responsible and caring brother who has spent years making sure his younger sister did not go astray.  They ask for leniency and mercy. 

11.  The defendant has also written me a letter expressing his genuine remorse and regret.  In the past three years since his arrest, he has had time to reflect and now realises the seriousness of this offence.  He is ashamed of himself and sorry he has disappointed his family. He asks for an opportunity to turn over a new leaf. 

12.  I have considered the contents of the background report.  The probation officer is impressed with the defendant’s determination to study, work and better the lives of his family.  He clearly believes that the defendant’s remorse is deep and genuine.  He finishes the report by saying a lesser sentence will not only benefit the accused in his reintegration into the community but also his family who needs his support. 

13.  The psychologist’s report does not indicate that he is a paedophile or has any deviant sexual issues.  He has low self-esteem or image and has had difficulty establishing healthy heterosexual relationships. He has not had any significant relationships before.  The offending videos were downloaded out of curiosity some time before he was arrested and there was no intention to publish or share the material on his part. 

Guidelines and Reasons for Sentence

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.  The first consideration is the appropriate level of the relevant depictions.  The Court of Appeal adopted four classification levels.  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’ imprisonment. 

15.  The Court of Appeal also listed a number of aggravating features including the age of the children depicted and whether there was an intention to publish as well as the number of images. 

16.  In mitigation, Mr Ng has urged me to consider the defendant’s age at the time of the offence, his clear record, the relatively small number of video clips, the delay in bringing the defendant to court, and the fact that despite that delay and stress that naturally goes with it, he has continued to work hard, better himself, obtain more qualifications and look after his family. 

17.  Mr Ng has succinctly highlighted the best mitigation.  I accept there are no aggravating factors in this case.  I have been asked to consider a community service order.  However, it has been said time and time again that sentences for offences of this nature must be deterrent.  I have taken into account the Secretary for Justice v Chan On Shun, CAAR 3/2017, where the Court of Appeal agreed with the prosecution that a suspended sentence imposed was not appropriate where there were 43 video clips of which 23 were Level 4.  They reiterated the need for a deterrent sentence. 

18.  The Court of Appeal then took a starting point of 18 months and reduced it to 12 for that 33-year-old respondent’s plea. They reduced that sentence by a further 3 months to 9 months to reflect the delay in prosecuting and bringing that respondent to court. 

19.  In this case, the majority of the video clips, 35 of them, were Level 4.  In order to reflect the seriousness and the need for a deterrent sentence but balance it out with the obviously good mitigation, including the defendant’s young age at the time of the offence and his previous clear record, I find a starting point of 15 months’ imprisonment appropriate. 

20.  The defendant has pleaded guilty at the earliest opportunity and is entitled to a discount of 5 months from that starting point.  There is a question of the delay of over 3 years from arrest to the day of reckoning, the day he was finally able to plead guilty.  I did ask for a chronology of events to understand why there was a delay of this length.  A chronology was provided, MFI-2. 

21.  Without apportioning any blame on either the police or the Department of Justice, there is no doubt that this delay is unreasonable and not proportionate.  The delay was certainly not the defendant’s fault.  I imagine the workload of the Cyber Security and Technology Crime Bureau tasked to examine the defendant’s computer was exceptionally busy and overloaded in 2019 and 2020.  I am sure this long delay was extremely difficult and hard on the defendant and his family, yet he impressively continued to work, study, take exams and look after his family.  For this delay, I intend to reduce the sentence by a further 3 months to reflect those factors I have amplified and considered. 

22.  Accordingly, the defendant is sentenced to a total of 7 months’ imprisonment.