HKSAR v. SZE HANG, TONY

DCCC 204/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 204 OF 2015

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Reasons for Sentence

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1.  Mr Tony Sze stands to be sentenced on two charges today. The first is obtaining access to a computer with dishonest intent, a charge to which he pleaded guilty at the outset of these proceedings; and the 2nd charge is a charge of possession of child pornography, where he was convicted after a trial.

2.  The facts of this case have been ventilated in the reasons for verdict I gave, and I do not propose to elucidate them in any great detail today.

3.  As far as the 1st charge is concerned, in essence, that related to access to a police computer where details of serving junior officers were removed by the defendant and subsequently posted on open social media. 

4.  As far as the second offence is concerned, that came to light during the investigation of the first offence, and involved the discovery of various materials on a hard disk and a laptop computer which I found to be in the possession of the defendant at the relevant time.  As far as those materials are concerned, the court is currently working on the basis that there are 271 videos and three photographs is the final figure arrived at in the computers and hard disk which had been classified into four levels, perhaps the most significant of that being the level 4, where there are a total of 55 videos and two photographs.

5.  As far as the defendant’s personal background is concerned, that is set out in two reports and also an antecedents statement. These somewhat clinical documents perhaps do not do full justice to the defendant.  I can tell from them that he is a 31-year-old male born in Hong Kong, a Hong Kong person, holder of a Bachelor degree in Business Administration, graduating from the Hong Kong University of Science and Technology. 

6.  We know from the trial process that he joined the police force as a probationary inspector in 2008.  Finally, his last posting being deployed to an office which we have described as MESU or MESUC in North Point, where he dealt with administrative matters up until his arrest or in fact his interdiction from duty for disciplinary matters in October 2013.

7.  The antecedents report describes the defendant as suffering from various allergies.  It was clear during the trial that he has suffered from some bad health in the past.  As far as his marital background is concerned, he is married.  He has a son and, as I understand it, another child on the way.

8.  The reports I obtained on the defendant were both psychological and psychiatric.  There is nothing of significance in them, except that the psychological report describes the defendant as having a low risk for recidivism.

9.  Otherwise, I know about the defendant from his evidence in court.  I have seen members of his family, and I have letters from various people who have known the defendant through his life.  He is described both by counsel and by those who know him as decent, upstanding; he has a loving family; he is a person who has made good in life; and it is hoped that these are character factors which will stand him in good stead in the future.

10.  Despite all this, I necessarily have to sentence him for the offences of which he has now been convicted, and it is clear that in relation to both charges, issues of good character are of limited significance in the way in which these offences are approached.

11.  I will deal with the 1st offence.  It is now some time since the defendant pleaded guilty to that, and it relates to matters in 2014, some three years ago now.  The instant offence is obtaining access to a computer with dishonest intent.  There are no operative guidelines for that offence.  In fact, in 2000 the Court of Appeal was invited to apply an operative guideline in Magistracy Appeal HKSAR v Tam Hei Lun 385/2000. The case in fact reserved the consideration of guidelines, and the court there observed that of many considerations the court would have to take into account in arriving at an appropriate sentence in respect of offences under this offence.  It says foremost is loss and damage caused to the victims; the gravity of the offence to the victim; the purpose of access is relevant, as is any financial or other gain to the person perpetrating the access.

12.  It says that where access has been obtained to someone else’s computer, whether for gain or some other reason, the act can, in many respects, be likened to burglary.  What has happened has been access to the computer of another, much as the same way a person who enters a house or an office goes through a drawer or filing cabinet.  But it says some of those aspects are undoubtedly not present in relation to unauthorised computer access.  The court acknowledged that this was a by no means perfect analogy.

13.  There is one case that I have discovered may have some relevance, and that is a case called HKSAR v Leung Ping Nam [2007], a case before the First Instance judge on appeal involving, from what I can glean from the facts, a police officer accessing the computer, and the court says the factors to be determined in determining the sentence starting point - it says:

“The appellant’s conduct in this case really was a police inspector who had accessed the police computer, so it did amount to a form of breach of trust. Restriction of access to information stored in the database is designed to preserve the integrity of that database and to ensure public confidence in its maintenance.”

It says:

“The restrictions were well known to the appellant...”

in that case, as they would be to Mr Sze in this case.

“Yet...”

it says:

“...he embarked on a course of conduct specifically designed to circumvent them in order to achieve the end...”

in the appeal case, he forged a document and used that to gain the desired access.

14.  It said after further consideration, that, given the seriousness of the offences, the circumstances in which they were committed and the fact they were committed by a serving police officer, the appropriate sentence is custodial.  And in the judgment of the court in that case, the appropriate starting point was one of 6 months’ imprisonment.

15.  So that would appear to set out some consideration of the factors to be taken into account in determining the appropriate level of sentence for the 1st offence, and that is that the offence involves a form of breach of trust, that any access on the database is there in confidence and the integrity of that database has to be ensured in order to ensure public confidence in its maintenance.

16.  Now, that must be obvious in respect of a police computer.  The police have much sensitive data on many members of the public. In fact, I believe that this case adds an additional aggravating factor, and that is that the information once obtained was placed on open media, and that in fact further compromises the integrity of the database, and by doing that one compromises both the institutional security of the police force itself and its disciplinary integrity.  In that case, I agree with the position of the High Court judge in the case I have referred to that the sentence should be a custodial sentence.

17.  I noted in that case that the court took a starting point of 6 months’ imprisonment.  I consider the aggravating factor in this case is the posting of this matter in public forums would aggravate this case to a higher starting point of 9 months’ imprisonment.

18.  So on the 1st charge, I will take a starting point of 9 months’ imprisonment.  The defendant has pleaded guilty.  He is entitled to a one-third discount for that plea.  I reduce that to 6 months’ imprisonment for his plea of guilty.

19.  On the 2nd charge, sentencing is governed by guideline, and the guideline in respect of the 2nd charge is Secretary for Justice v Man Kwong Choi [2008] HKCA 272, which laid down guidelines for sentence for possession of child pornography.  It says that:

“The first consideration for sentence is the appropriate level of the relevant depictions.”

And the Court of Appeal adopted four classification levels in Hong Kong. Those classifications were from level 1 to 4. It said:

“The Court of Appeal considered level 4 cases as meriting the most serious treatment.”

It said:

“The range of custodial sentence should generally be from 12 months to 3 years’ imprisonment.”

The Court of Appeal also listed a number of aggravating factors, including the age of the children depicted, intention to publish, and the number of images.

20.  The aggravating factor in this case would appear to be, or the factor of these considerations, is the number of images, the total being total videos and three photographs, and in the level 4 category, being 55 videos and two photographs.

21.  As counsel for the defence pointed out, there is no suggestion of there being an intention to publish or any suggestion the defendant was involved in the making of the images, the images being, on the face of it, purely for personal use.

22.  Having regard to the operative guideline, the defendant’s possession of the level 4 videos puts him within the range of 12 months to 3 years’ imprisonment.  One could say that the amount of material is neither small nor large.  I will take a mid‑point within that guideline.

23.  The sentence on the 2nd charge will be one of 24 months’ imprisonment.

24.  In respect of determining starting points in both cases and also the operative sentence for the defendant, of course I have had regard to the defendant’s clear record and the many laudatory things that have been said about him; but in both the 1st and 2nd offences, it is clear upon reading the relevant authorities that both the defendant’s background and his motivation are not strong mitigating factors.

25.  In respect of there being two offences, I must consider to what extent those offences should be served consecutively or concurrently. 

26.  They are committed on separate occasions, and so could be served entirely consecutively.  I have to have regard to what would be described as the overall total appropriate sentence.

27.  I consider the overall appropriate total sentence for the defendant in this case is 27 months’ imprisonment.

28.  I will achieve that by ordering that 21 months on the 2nd charge run consecutively to the 1st charge and the balance concurrently, and that will be the sentence.