HKSAR v. NG CHI YEUNG, TONY

DCCC 616/2018

[2019] HKDC 548

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 616 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Ng Chi Yeung, Tony, pleaded guilty before me to one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579. Particulars are that he, on 18 May 2017, at Flat H, 25^th Floor, Block 2, Pokfulam Gardens, No 180 Pok Fu Lam Road, Pok Fu Lam, in Hong Kong, had in his possession child pornography, namely 124 video clips containing child pornography stored in his desktop computer and external hard disc.

2.  The facts admitted by Mr Ng may be summarized as follows.

3.  Mr Ng resided at the subject premises.

4.  On 18 May 2017, police raided the premises on strength of a search warrant.  Mr Ng answered the door.  Upon house search, child pornography was found inside a desktop computer placed in the living room.

5.  Upon enquiries, Mr Ng said that he was the sole user of the computer.

6.  Internet services at the premises were subscribed under Mr Ng’s name.

7.  Under arrest and caution, Mr Ng admitted that the child pornography had been downloaded by him vide “BT” (a peer-to-peer data sharing software).

8.  Mr Ng was subsequently video-interviewed under caution when he admitted that the computer belonged to him.

9.  The computer together with an external hard disc were seized and later examined by the Cyber Security and Technology Crime Bureau of the Police. Altogether 124 video clips containing child pornography downloaded from “eMule” (a peer-to-peer file sharing software) were found.  They contained child pornography and are classified as follows:-

(a) Level 1 material – 14 videos (11%) with images depicting erotic posing with no sexual activities (4 of them relating to 6-10 year olds; 10 of them relating to 11-15 year olds);

(b) Level 2 material – 7 videos (6%) showing sexual activities between children or solo masturbation by a child (3 of them relating to 6-10 year olds; 4 of them relating to 11-15 year olds);

(c) Level 3 material – 4 videos (3%) showing non-penetrative sexual activities between adults and children (2 of them relating to 6-10 year olds; 2 of them relating to 11-15 year olds); and

(d) Level 4 material – 99 videos (80%) showing penetrative sexual activities between children and adults or sadism or bestiality (2 of them relating to 0-5 year olds; 40 of them relating to 6-10 year olds; 57 of them relating to 11-15 year olds).

10.  Certain peculiar features were found in some of the video clips: these included sexual intercourse between male adults and children without the use of condom; ejaculation inside the child’s private parts; adult engaging in sexual intercourse with the child whilst she was being tied up by a piece of rope; buggery; inserting hard object(s) into the private parts of the child; the child screaming and showing signs of distress whilst engaging in sexual intercourse with the male adult; orgy; a male adult urinating on the child; two children forced to kiss each other etc.

Criminal record

11.  Mr Ng enjoys a clear record.

Antecedents

12.  The antecedents statement is agreed.  Mr Ng is aged 36 (34 at the time of the offence).  He was born in Hong Kong and completed his secondary education in Australia.  He returned to Hong Kong for work at the age of 21. He had worked in clerical positions; he had worked in a laundry and has worked as a waiter.  Lately, he has secured a job at a kindergarten library with a monthly salary of about $12,000.

13.  Mr Ng’s parents separated many years ago.  He lives with his mother and girlfriend in a private flat.

Mitigation

14.  Ms Cindy Kong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ng.

15.  Prior to hearing, the solicitors acting for Mr Ng filed to court a mitigation bundle consisting of the following:-

(a) The case authority of HKSAR v Choy Ka Leung, CACC 365/2012;

(b) A psychiatric report on Mr Ng compiled by Dr Tsang Fan Kwong; and

(c) A collection of mitigation letters (some in Chinese) written by Mr Ng himself, his father, his mother, his live-in girlfriend, his elder cousin, his aunt, his ex-colleague, and his uncle.

16.  Before compiling the report, Dr Tsang had interviewed Mr Ng twice for a total of 3 hours’ duration.  Mr Ng’s cousin was also seen as an independent informant.

17.  Dr Tsang’s opinion on Mr Ng was that the latter was suffering from Asperger disorder with excessive repetitive and preoccupied behaviours that affected his occupation, social and interpersonal functioning; that he might benefit from cognitive-behavioural psychotherapy so that he could learn better way in getting along with people and to widen the scope of his interest and made him less restricted, so that he could adjust better in his life.

18.  Dr Tsang furthered that Mr Ng had significant obsessive rituals and certain phobic symptoms such that he might benefit from drugs treatment and more structuralized cognitive behavioural therapy in an outpatient psychiatric setting.

19.  Dr Tsang opined that Mr Ng was not suffering from pedophilia and that his recidivism rate was low; that Mr Ng did not need in-patient treatment for his psychiatric condition.

20.  Dr Tsang went out of his way to recommend a non-custodial sentence saying it would be more desirable for Mr Ng to receive cognitive behavioural therapy in the community setting as he could encounter varieties of people which would be helpful to widen his restricted maladaptive behaviour; that a structuralized and routine environment might enhance his restrictive and repetitive behaviour.

21.  Ms Kong reserved her mitigation until a psychiatric and a psychological reports that I ordered on Mr Ng have become available.

Psychiatric report

22.  Dr Oliver Chan, Psychiatrist, observed that Mr Ng’s speech was coherent and relevant and that he was not psychotic and did not have active self-harm of (sic) violent thoughts.

23.  Dr Chan opined that Mr Ng has problem of autistic spectrum disorder and obsessive compulsive disorder; that while he does not [need] compulsory in-patient treatment, he is strongly advised to be followed up at the out-patient psychiatric clinic given the chronicity of his mental problem. 

Psychological report

24.  Mr Joe Wong, Clinical Psychologist, observed that Mr Ng performed exceptionally well in the Standard Progressive Martrices, an intellectual screening test.  Mr Wong commented that individuals with similar performance should be able to distinguish right from wrong and should be well aware of the consequence of his actions.

25.  Mr Wong assessed Mr Ng to be a man with features of Autism Spectrum Disorder, Specific Phobia and Obsessive-Compulsive Disorder; that his insistence on striving for justice and righteousness, repetitive behaviours of saving and organizing all downloaded materials in his computer and his belief of using the materials someday to identify and arrest those perpetrators and producers of child pornography might contribute to his offending behaviours.

26.  Commenting on “Asperger’s Disorder” which Dr Tsang had assessed Mr Ng to be suffering from, Mr Wong described it as being classified as Autism Spectrum Disorder in the latest version of The Diagnostic and Statistical Manual of Mental Disorders.

27.  Mr Wong opined that there was insufficient evidence to suggest the presence of Pedophilic Disorder in the current assessment of Mr Ng; that based on Mr Ng’s self-report and information from file records only (hence with the possibility of under-estimating), the risk of his re-offending was assessed to be low.

28.  In conclusion, Mr Wong recommended psychological intervention on his phobic and obsessive-compulsive reactions as well as adaptation to the difficulties in his daily living due to Autism Spectrum Disorder.

Prosecution’s position on Dr Tsang Fan Kwong’s report and Mr Ng’s claims as contained therein

29.  Prosecution was asked for their position on Dr Tsang’s report on Mr Ng. By letter dated 11 April 2019, prosecution observed that both Dr Tsang and Dr Oliver Chan apparently assessed Mr Ng to have features consistent with the diagnosis of Autistic Spectrum Disorder.

30.  When pressed for their definitive position on Mr Ng’s claims (plural) as contained in Dr Tsang’s report, the prosecution eventually in a letter dated 12 April 2019 stated they did not accept Mr Ng’s claim that the alleged purpose of saving the subject child pornography was so that he might find a way to help the children involved in the child pornographic material.  Prosecution submitted that this was plainly incredible and should be rejected.  Prosecution cited three cases as examples in support, namely, HKSAR v Loh Joo Hooi [2014] 3 HKC 301, HKSAR v Cheung Wai Kong, CACC 142/2001, and SJ v Yan Shen [2012] 3 HKC 557.

31.  Having heard Ms Irene Poon, SPP, for the prosecution’s elaborate submissions on the matter, I rejected their proposition that the above-mentioned claim of Mr Ng was plainly incredible.  This is due in no small measure to the conclusions reached by all three reports obtained on Mr Ng which spoke with one voice, and that is Mr Ng was suffering from some form of mental problem, be it psychiatric or psychological.

Factual enquiry to determine if the court can accept Mr Ng’s claims as contained in Dr Tsang Fan Kwong’s report

32.  When further pressed in court as to which other claims made by Mr Ng as recorded in Dr Tsang’s report that the prosecution would not accept, the prosecution said paras 26, 41, 42, 46, 47, 48, 49, 50, 51, 61, 62, 64, 65 & 66.

33.  When told that the truth or otherwise of these claims as well as the one claim specifically referred to by the prosecution in their letter dated 12 April 2019 may affect the sentence, Ms Kong indicated that Mr Ng has elected to give evidence on the matter.

34.  Mr Ng was duly called to give evidence and was rightly and responsibly cross-examined by the prosecution with a view to helping the court make factual findings.

35.  In the main, Mr Ng confirmed the contents of those disputed paragraphs with minor amendments.  Those amendments did not affect the principal claim of Mr Ng which was that he saved the subject child pornography so that he might find a way to help the children involved.

36.  Neither side made submissions on the facts. 

37.  In the end, I ruled in favour of Mr Ng in that I accepted on the balance of probabilities his evidence which included the contents of the disputed paragraphs as orally amended slightly by him in court.  The short reason for doing so was that the evidence could not be described as illogical and was not shaken under cross-examination.  It was also clear to anyone sitting in the public gallery that Mr Ng has some mental issue about him which might, in my judgment and on the balance of probabilities, have led him to his belief.  I took into account Mr Ng’s previous clear record which was water-downed but only slightly by his present plea and conviction.

Mitigation in light of the reports

38.  Ms Kong relied on the contents of the Speaking Notes for Mitigation filed to court before the first hearing.

39.  The following is a summary of the speaking notes.

40.  Mr Ng was the only child in his family and he had difficulties in communicating with his parents who he described as assertive, inquisitive, manipulative and provocative.

41.  Mr Ng emigrated to Australia with his parents at primary 4 and finished his secondary schooling in Australia.  His academic performance was good, and he was first in mathematics in the public Tertiary Entrance Examination.  He then studied actuarial in Curtin University.

42.  Unfortunately, Mr Ng’s parents divorced when he was in year 2.  He decided to abandon school and followed his mother back to Hong Kong.

43.  Mr Ng had worked in various trades after his return including logistics, laundry shop, restaurant and as an office clerk.  His last employment was as a librarian in a kindergarten.  It was a job he enjoyed as he did not need to interact with people and he only needed to tidy, sort and arrange books.

44.  Throughout his school life and work life, Mr Ng was quiet and had few friends, and was a subject of bully by his classmates and some co-workers with whom he did not know how to get along.

45.  During interviews with Dr Tsang, Mr Ng reportedly claimed that he was a person unable to tolerate unfairness and injustice (para 38 of the report); that he was concerned about social fairness, justice and equality such as rights of transgender and same sex marriage (para 39 of the report); that he was keen about protection of children’s rights and would be upset by children being abused; that he desisted child exploitation and always attended to news concerning children’s rights (para 40 of the report); that on first discovery about child pornography in downloaded video, he was shocked, angry and unable to breathe; that he found it unacceptable to have children being exploited by adults and wished to do something to prevent children from being further exploited (para 41 of the report); that he did not intentionally select and download the pornographic materials and that the offending videos downloaded into his computer was from a computer programme “emule” which automatically downloaded a large amount of information in bulk which were not classified or organized (para 46 of the report); that in order to save the children by punishing the adults who partook in child pornography, he started saving the downloaded files in his computer hoping that with technological development in facial and voice recognition, he could in future hand over the files to the relevant authorities to identify the adults appearing in the child pornography and report them to the police and that he did not watch the pornographic videos and found the contents of the video sick and annoying (paras 41-42 of the report).

46.  Dr Tsang opined that Mr Ng’s downloading, sorting, organizing and keeping downloaded files (including child pornographic videos) appeared to be one form of restricted repetitive and stereotyped patterns of behaviour, interests and activities found in person suffering from Asperger disorder (para 64 of the report).

47.  Dr Tsang observed that Mr Ng had persistent preoccupation that keeping the child pornographic materials might help to protect the victims and to assist the police to arrest the people abusing the children in the video.  Dr Tsang opined that keeping such pornographic materials in this case was consistent with Mr Ng’s restricted repetitive behaviour and beliefs that he would not compromise with injustice, and his intolerance of the under-privileged being exploited (para 65 of the report).

48.  Dr Tsang further opined that it was likely that at the relevant time, Mr Ng was acting out the restricted repetitive and stereotyped pattern of behaviour, a significant symptom of Asperger disorder, that his decision, judgement and self-control was substantially impaired (para 66 of the report).

49.  Ms Kong asked the court to bear in mind HKSAR v Choy Ka Leung, CACC 365/2012, and HKSAR v Gelizon Lordjel Mangiliman, DCCC 957/2017, when sentencing Mr Ng.

50.  Ms Kong submitted that in this case, the “level” factor of the videos is of relatively less importance because Mr Ng did not possess the pornography with the object of viewing them; that some of the video files were in fact never opened by Mr Ng.  Ms Kong submitted that Mr Ng was under such a mental state whereby he honestly believed that to maintain the offending videos may serve the public good at a later date (my emphases).

51.  Ms Kong urged the court to consider Mr Ng’s unusual personal circumstance and to accept that he sincerely believed he might be able to help stop child exploitation by his behaviour.

52.  That concludes the summary of the speaking notes.

53.  The following is a summary of the mitigation submissions made by Ms Kong on behalf of Mr Ng.

54.  One of the cases cited by the prosecution ie SJ v Yan Shen involved a much more serious offence, namely possession of arms without licence.  There were however similarities between that case and the present one namely (a) both cases dealt with Possession; (b) there were reports from psychiatrist and psychologist on the mental status of both defendants; and (c) both defendants had previous unblemished character.

55.  It is not in dispute that Mr Ng was suffering from Asperger Disorder, Specific Phobia and Obsessive-Compulsive Disorder.  He was assessed not to be a pedophile and his reoffending risk was assessed to be low.

56.  The case of Man Kwong Choi has laid down sentencing guidelines for the offence of possession of child pornography and the usual form of sentence is immediate imprisonment unless special circumstances exist.  It is submitted that this is one such case.  In Mr Ng’s mind at least, he contemplated to help arrest the perpetrators.  Ms Kong asked the court to approach the sentencing of Mr Ng on the basis of someone different from the normal person.

57.  One of the purposes of sentencing is for the protection of the community and there is nothing to suggest Mr Ng poses a danger to society.  Ironically, the reason why he committed the present office was to protect children.  This case calls for the court’s discretion in sentencing not a sex pervert as Mr Ng found no joy in viewing the material which he found disgusting.

58.  Mr Ng has a clear record.  He did not harm anyone and there is no reason to remove him from society.  He is a hygiene freak and a simple and kind-hearted man.  Society is too complicated for him.  He has spent 20 days in custody and heard the clangs of prison gates which was already a nightmare to him.  All 3 experts recommended treatment.

59.  Ms Kong asked the court to consider calling for a CSO report bearing in mind all options are of course open.  Ms Kong explained that Mr Ng has the capacity to perform community service – that he has been to college and has worked before.

60.  When asked if suspended sentence might be a possible sentencing option, Ms Kong replied that if the court is not minded to impose CSO, then a suspended sentence would be very appropriate.  On length, Ms Kong has no recommendation save that she reminded the court that Man Kwong Choi had laid down a tariff of 12 to 36 months’ starting point for possession of level 4 material.

61.  On the case of SJ v Chan On Shun [2018] 3 HKLRD 447 lately handed up by the prosecution, Ms Kong acknowledged the general principle as laid down in Man Kwong Choi ie this type of offence was extremely serious and should generally attract an immediate custodial sentence unless special circumstances exist.  However, Ms Kong submits that the present case is an unusual case with special circumstances which call for the exercise of the court’s discretion.  Ms Kong re-emphasized that in this unusual case, the level of the material per se should not be a major consideration for the court because Mr Ng did not keep the material for viewing.  Mr Ng intended to prevent the children from being abused and he used his own little ways to do so.

Sentence

62.  Before sentencing, I had ordered a psychiatric and a psychological reports on Mr Ng.  I directed that a copy of Dr Tsang Fan Kwong’s report on Mr Ng be supplied to the two government experts for their reference.

63.  I have considered the mitigation submissions made by and the cases referred to by Ms Kong.

64.  I have considered all of the cases referred to by the prosecution.

65.  I have read the mitigation letters contents of which are generally that Mr Ng is remorseful for what he has done.

66.  I have viewed a representative sample of the captured images from the video clips involved in this case.

67.  I have considered and generally accept the contents of the various reports made on Mr Ng.

68.  The maximum sentence for the subject offence is a fine of $1M and imprisonment for 5 years.

69.  In the case of Secretary for Justice v Man Kwong Choi & Anor [2008] 5 HKLRD 519, the Court of Appeal was of the view that the deterrence factor became particularly significant when sentencing for this type of offence and that an immediate custodial sentence should generally be imposed.  That case has also set down sentencing guidelines applicable to possession of various levels of material involving real children (as is the case here).

70.  In the present case, the bulk of the child pornography (80% or 99 videos) is of Level 4 material and therefore I propose to pitch the sentence according to this level.  According to Man Kwong Choi, for that level of material, the starting point of imprisonment should generally be between 12 and 36 months’ duration.

71.  In this case, given the absolute amount of Level 4 material, and taking into consideration all of the relevant factors enunciated in Man Kwong Choi, I shall adopt a starting point of 19 months’ imprisonment.

72.  Because of Mr Ng’s absolute clear record, I shall deduct one month off the starting point before applying the usual 1/3 discount for an early guilty plea.

73.  There are no other mitigating factors of sufficient weight to warrant any further discounts.

74.  The imprisonment term shall be one of 12 months.

75.  Next, I consider if there are any special circumstances to warrant suspending the sentence in Mr Ng’s case.  Here, after holding an enquiry in which Mr Ng gave evidence on oath, I am satisfied on the balance of probabilities that the purpose for which Mr Ng saved the subject child pornography was that he might later find a way to help the children involved. Not only that, I am also similarly satisfied that Mr Ng did not seek to download the child pornography in the first place but that they were automatically downloaded onto his computer by the “eMule” software indiscriminately.  Mr Ng’s wrong-doing consisted in saving the child pornography onto the hard disc after discovering their nature.

76.  For these reasons, I will suspend the imprisonment about to be imposed on Mr Ng.

(Mr Ng, please stand)

77.  Mr Ng will be sentenced to a term of 12 months’ imprisonment suspended for 18 months.