HKSAR v. CHOY KA LEUNG

CAC C 365/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 365 OF 2012

(ON APPEAL FROM DCCC NO. 405 OF 2012)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. On 27 May 2013, we dismissed the application for leave to appeal against sentence.  We indicated that we would hand down our reasons in due course and this we now do.

The Facts

2. Acting on information that the applicant (Choy Ka Leung) had downloaded suspected child pornography from the internet, the police searched his residence in King Lam Estate, Tseung Kwan O on 3 July 2010 in his presence.

3. One of the applicant’s computers was found to have child pornographic materials and it was seized together with 4 columns of 78 discs.  The computer hard disk and 5 of the 78 discs seized from the applicant’s residence were found to contain child pornography in the form of 2,457 photographs and 157 video clips.  The photographs and video clips featured different persons under the age of 16 years (2 to 15 years) and they were grouped under the following categorization:

(a) Level 1, being images depicting erotic posing with no sexual activity – 1,887 photos and 67 video clips;

(b) Level 2, being images depicting sexual activity between children or solo masturbation by a child – 95 photos and 44 video clips;

(c) Level 3, being images depicting non-penetrative sexual activity between adults and children – 330 photos and 19 video clips; and

(d) Level 4, being images depicting penetrative sexual activity between children and adults, or sadism or bestiality – 145 photos and 27 video clips.

The Charge and the Sentence

4. The applicant pleaded guilty to one charge of possession of child pornography, contrary to s 3(3) of the Prevention of Child Pornography Ordinance, Cap 579 (the Ordinance) before Deputy District Judge Chainrai (the judge) and was sentenced to 22 months’ imprisonment.

The Applicant’s Background and Mitigation

5. The applicant, aged 35, is single with a clear record.  He is a graduate with a bachelor’s degree in Social Science and a master’s degree in Sociology.  He had been working as an Assistant Census and Survey Officer in the Census and Statistics Department since July 2008 and was earning about $17,000 a month.  He had a steady girlfriend.

6. The applicant claimed to have no tendency of paedophilia or pathological sexual preference.  He said he often downloaded various videos purposelessly and he might not have switched off the computer leading to the downloading of a lot of information.  He also said he was weak in managing the downloaded materials due to his “attention deficiency” syndrome.

7. The applicant was said to have suffered from great stress, fear and anxieties of losing his girlfriend and his job as well as from the shame resulting from the disclosure of the offence.

8. The case had dragged on for two years and the applicant had developed depressive symptoms of low mood, insomnia, headache, lacking work motive and even suicidal tendency which necessitated consultation with a psychiatrist.  The applicant said he regretted what he did and his almost 150 colleagues signed a mitigating letter seeking leniency from the court.

The Sentence

9. The judge adopted a starting point of 3 years’ imprisonment.  The judge pointed out the period of about 20 months from the day of the applicant’s arrest to the day when he was charged (July 2010 to April 2012) and took the view that the stress suffered by the applicant warranted a reduction of the starting point to 33 months.  The judge further reduced the 33 months by one-third on account of the guilty plea to 22 months’ imprisonment.

The Application

10. Represented by Mr HY Wong, the applicant sought leave to appeal against sentence.

11. Mr Wong suggested that as the judge had intended to give the applicant a 3-month discount of sentence for the stress he suffered, the 3 months should be deducted from the reduced sentence of 24 months after the guilty plea and not from the initial starting point of 3 years.  If Mr Wong was right, there was a difference of one month, namely that the final sentence should be 21 months instead of 22 months.

12. Mr Wong also referred us to a number of cases involving possession of child pornography and suggested that the applicant’s sentence, when compared with the sentences in those cases, was manifestly excessive.

13. Mr Wong argued that the judge had failed to give any or any sufficient weight to the mitigating letter from the applicant’s family, friends and colleagues, who all spoke highly of him.

14. The fact that the applicant had suffered from anxiety, insomnia and depression was confirmed by the psychiatrist.  The psychologist took the view that the applicant was poor in dealing with stress and always perceived himself as being inadequate although he tended to present himself as a problem solver for others.  He also accumulated lots of negative emotions arising from his dissatisfaction towards society.  He increasingly used pornography to cope with his work stress and loneliness at home.

15. The psychologist took the view that the applicant’s sexual interest in children remained uncertain because of his strong denial as well as superficial insight into his own problem and remorse although the risk of his re-offending was not high.

Discussion

16. A defendant who pleads guilty in a timely manner is entitled to a one-third discount of sentence.  Such a discount of sentence is “usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time.” (See S for J v Lee Chun Ho Jeef [2010] 1 HKLRD 84 and HKSAR v Leung Shuk Man [2002] 3 HKC 424).

17. The one-third discount of sentence on a guilty plea is a policy decision which serves the public interest, by ensuring that justice will be administered more efficiently and expeditiously and in applying such a policy, the approach taken by the court must be a firm and broad-brush one.  In HKSAR v Ma Ming [2013] 1 HKLRD 813, the Court of Appeal said at p 820-821:

“…when giving the one-third discount the approach taken by the court is a firm and broad-brush approach. It gives a defendant who timely pleads guilty the one-third discount, which is substantial, without regard for niceties, in order to discourage excessive arguments and to prevent wasteful use of the resources of the community.”

18. When dealing with individual cases, the court can, in the exercise of its discretion, take into account other mitigating factors, such as stress suffered by the defendant arising out of delay in the prosecution or the defendant’s positive good character and/or exceptional contribution to society, but general good character or stress as a result of the criminal prosecution do not entitle the defendant to a further discount of sentence as of right and the denial of such a further discount cannot constitute a reasonable complaint, nor can it be a valid ground of appeal against sentence, otherwise the purpose of the one-third discount policy will be defeated.

19. There was no suggestion of any undue delay on the part of the prosecution.  The judge had already reduced the starting point by three months, which is a substantial reduction of about 10%.  The judge made it clear that it was a reduction of three months from the starting point and there was no valid basis for Mr Wong’s suggestion that it was the judge’s clear intention to give the applicant a 3-month sentence reduction.

20. The judge was also entitled not to give the applicant a further discount of sentence because his family, friends and colleagues spoke highly of him.  If mitigating letters from colleagues, friends and relatives invariably had the effect of successfully persuading a sentencing judge to reduce what was otherwise a proper sentence, the courts would be inundated with such letters and it was not a practice that should be encouraged.

21. The judge did not err in principle and there can be no valid complaint against the judge’s exercise of discretion.

22. The only remaining issue was whether the starting point of 3 years’ imprisonment adopted by the judge was manifestly excessive.

23. At the court’s request, the prosecution provided statistics on sentences recently imposed by the District Court on similar cases of possession of child pornography.  Many of those cases involved defendants who took indecent photographs of young girls, having had some form of relationship with them.  They were not cases where the defendants downloaded large numbers of pornographic photos and videos of children from the internet and to that extent they were not really relevant.

24. The following cases appeared to be similar and therefore relevant:

· DCCC 756/2010 (Sun Tsun-yen) in which the numbers of photos/video of Level 1, Level 2, Level 3 and Level 4/5 involved were respectively 10,247/76, 652/72, 841/41, and 345/39.  The defendant was aged 61 and the ages of the victims ranged from babies to teenagers.  The starting point adopted was 36 months.

· DCCC 968/2010 (Ford, Norman Jackson) in which the numbers of photos/video of Level 1, Level 2, Level 3 and Level 4/5 involved were respectively 37/44, -/25, -/77 and 18/39.  The defendant was aged 49 and the ages of the victims were mostly 12 to 13.  The starting point adopted was 18 months.

· DCCC 197/2012 (Wong Sung-yiu) in which 17 videos of Level 1, 27 videos of Level 2, 45 videos of Level 3 and 148 videos of Level 4/5 were involved.  The defendant was aged 25 and the ages of the victims were 12 to 13.  The starting point adopted was 30 months.

· DCCC 32/2013 (Lee Man-ho) in which 13 videos of Level 1, 11 videos of Level 2, 18 videos of Level 3 and 40 videos of Level 4/5 were involved.  The ages of the victims were 10 to 15.  The starting point adopted was 30 months.

· DCCC 64/2012 (Kwok Po-lun) in which the numbers of photos/video of Level 1, Level 2, Level 3 and Level 4/5 involved were respectively 15,533/99, 9,131/88, 8,585/111 and 7,705/212.  The defendant was aged 26 and the ages of the victims were 1 to 13.  The starting point adopted for the charge of possession of child pornography was 3 years and 9 months.  The defendant was also found guilty of a charge of publishing child pornography leading to a total sentence after trial of 4 years and 6 months’ imprisonment.

· DCCC 171/2010 (Yau Yan-kit) in which the numbers of photos/video of Level 1, Level 2, Level 3 and Level 4/5 involved were respectively 1,015/-, 111/4, 366/8, and 242/5.  The defendant was aged 21 and the ages of the victims were 1 to 13.  The starting point adopted was enhanced from 15 months to 18 months because a one-year old child was involved.

25. Apart from DCCC 171/2010, the sentence imposed on the applicant appeared to be in line with other similar cases.  DCCC 171/2010 involved a defendant who was only 21.  The judge, in sentencing the defendant, made it clear that she took into consideration that he was of clear record and aged only 21.

26. In any event, we were unable to say, based on the cases provided, that the sentence imposed on the applicant was outside the range of sentences that had been imposed in other similar cases.

27. In Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519, the Court of Appeal examined the issue of sentence in possession of child pornography cases.  The court took the view that for Level 4 depiction of child pornography i.e. penetrative sexual activity between children and adults, or sadism or bestiality, most serious treatment and custodial sentences generally of 12 months (even for a few images) to 36 months were merited.

28. The Court of Appeal emphasized that other relevant factors included whether the depictions were: (i) of real children; or (ii) artificially created.  The court further emphasized that it was important for the sentencer to examine the images concerned or, at the very least, a representative sample, so that their true nature and gravity was made apparent.

29. The aforesaid levels of sentences were meant to be starting points and the Court of Appeal made it clear that there could be aggravating factors that would enhance the starting points and the aggravating features identified at page 529 of its judgment included the following:

(1)    A previous record involving a similar offence (or offences) against children.

(2)    The age of the children depicted.  Where the depictions involved particularly young children, this would be an important consideration.

(3)    The purpose for which the accused possesses the depictions will also be relevant.  Where it is proved that the accused intends to disseminate the images for commercial (or even non-commercial) gain, or intends to publish, these will be significant aggravating factors.

30. The implication was clear that in cases where one or more of the aforesaid aggravating factors appeared, the starting point could well exceed three years.  This is perfectly understandable, bearing in mind that the maximum sentence for the offence of possession of child pornography is 5 years’ imprisonment.

31. The judge, in sentencing the applicant, had taken into consideration the background of, and the psychiatric and psychological reports on the applicant.  The judge had also viewed a photo album of the child pornography in question.  The judge had the following observations to make:

“The children that can be seen are all quite young, and the fear and discomfort in the faces of the children on some of the photos is evident, e.g. action 0054 on page 77 of the photo album. The young age of the children in the child pornography, as well as how the children are depicted, and the way they are posed e.g. on page 162, where there are photos of young children tied up, or on page 174, a child in a cage, in my view are aggravating features.”

32. The judge was entitled to take the view as she did.  The judge was also right in emphasizing that a serious view must be taken of those who possessed child pornography and that for the protection of the victims of child pornography and the society generally, a deterrent sentence was called for.

33. We had also ourselves looked at the photo album in question.  Many of the children depicted were very young indeed, aged between 2 and 9 years.  Some of the photos depicted very young children being tied up, caged or handcuffed when performing various perverted sexual acts.  There were children being urinated on. These were clearly serious aggravating factors.

34. We had considered the facts of the case.  We had compared the applicant’s sentence with sentences in other similar cases.  We had also looked at some of the relevant photographs.  We were of the view that the ultimate sentence of 22 months’ imprisonment, though not a lenient sentence, could not be said to be manifestly excessive.

35. The application for leave to appeal against sentence was therefore dismissed.