HKSAR v. LAW KAM LEONG

DCCC 264/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 264 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Possession of child pornography". The child pornography involved consists of 135 still photos and 22 video clips stored in a desktop computer.

Summary of Facts

2.  About 7:30 am on 12 August 2014, the Police executed a search warrant at the defendant's home situated at a public housing unit at Leung King Estate, Tuen Mun.

3.  A desktop computer which contained child pornography in the form of still photos and video clips was seized.  Under caution, the defendant admitted that he paid for and downloaded the photos and video clips from the internet.  He claimed that he has never shown or sent those images to others.

4.  The still photos and video clips featured real children and all of them were girls.  The children depicted all appeared to be under 16 (aged between 5 and 15).  The images are categorized as follows :-

(a) Level 1 (images depicting erotic posing with no sexual activity) – 89 photos and 1 video clip;

(b) Level 2 (images depicting sexual activity between children or solo masturbation by a child) – 14 photos and 1 video clip;

(c) Level 3 (images depicting non-penetrative sexual activity between adults and children) – 21 photos and 5 video clips; and

(d) Level 4 (images depicting penetrative sexual activity between children and adults; sadism or bestiality) – 11 photos and 15 video clips.

5.  In the present case, the Level 3 images depicted oral sex between children and adults.  The Level 4 images depicted oral sex and sexual intercourse between children and adults.

Mitigation & Sentence

6.  The defendant is 25 and has a clear record.  He is single and resides with his parents.  Prior to the offence, he worked as a bus driver earning $15,000 per month.  He drove the route servicing Tai Po and the Airport.  He resigned in May 2015 owing to the present case.

7.  In mitigation, defence lawyer Mr. LO submitted that the defendant downloaded the data in 2012 when he broke up with his girlfriend.  He was depressed and bored.  So he surfed on the internet and discovered a website.  He signed up for membership and downloaded the images.  Mr. LO stressed that the defendant foolishly committed the offence as a result of his curiosity.  He kept the image files for his personal viewing only; he did not distribute them to others or publish them on the internet.

8.  A bundle of mitigation letters and supporting documents was placed before me; their contents are duly noted.

9.  I called for a Background Report and a Psychologist's Report.  The Clinical Psychologist made the following remarks :-

"Mr. Law exhibited a paedophilic tendency, which is a kind of deviant sexual interest towards prepubescent children. However, there was no indication to suggest that Mr. Law had acted out his sexual impulse against underage girls. His insight into his problem was limited. In view of Mr. Law's age, deviant sexual interest, criminal history, and the nature of the present offence, his risk of re-offending was assessed to be low-moderate."

In his conclusion, the Clinical Psychologist recommended psychological treatment targeting at the defendant's deviant sexual interest.

10.  I have viewed the photo album submitted by the prosecution.  The images are no doubt repulsive and disturbing.  Fortunately, apart from the depiction of their nudity and sexual activities, I see no additional maltreatment of or cruelty to the children (such as being tied up, caged or handcuffed; other perverted sexual acts, imaginable or otherwise).  I accept that those images are not the worst of their kind.

11.  Mr. LO submitted that 90 out of the total of 157 items found in the defendant's computer belong to Level 1 (whereas 26 items belong to Level 4); most children depicted were aged between 13 and 15; and no sadism or bestiality was involved.  For the purpose of sentencing, I accept that other than falling within their respective category levels, the images involved in the present case carry no aggravating features.

12.  I have borne in mind the sentencing principles laid down by the Court of Appeal in HKSAR v CHOY Ka Leung CACC 365/2012.  I am also aware that for Level 4 depiction of child pornography, an immediate custodial sentence in the range of 12 to 36 months[1] is warranted.  Having considered all relevant factors, I adopt a starting point of 15 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further discount. I sentence the defendant to 10 months' imprisonment.