HKSAR v KWOK PO LUN

DCCC 64/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 64 OF 2012

____________

____________

REASONS FOR SENTENCE

___________

1.  The defendant is convicted after trial of one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Chapter 579 (charge 1), and one charge of publishing child pornography, contrary to section 3(2) of the Prevention of Child Pornography Ordinance (charge 2).

2.  Reasons for verdict were delivered on the 19 March 2013.  In summary on the 15 April 2010 the police executed a search warrant at the defendant’s home.  The police seized three computers, one from the bedroom of the defendant.  Subsequent forensic examination of this computer by PC 3379 of the Technology Crime Division revealed 62,284 images and 639 films suspected to be child pornography were stored on the computer.  Admitted in evidence at trial was that of these 40,954 images and 510 films were child pornography.

3.  The only valid user account of the computer was “Alan”, the name used by the defendant. Access was set as system administrator which meant that the defendant had access to everything on the computer.

4.  The child pornography was found in four different locations within D drive, the vast majority in ‘eMule’ and ‘My Pictures’.  30,580 images and 624 films of suspected child pornography were found in ‘eMule’.  ‘eMule’ was installed using the account “Alan”, and the programme files of ‘eMule’ belonged to the account “Alan”.  The account “Alan” was last used to execute the programme ‘eMule’ on the 14 April 2010, the day before arrest. 

5.  A total of 31,704 suspected child pornographic images were stored in My Pictures, a commonly used site for storing pictures.

6.  The evidence showed the defendant had actually viewed the child pornography.  PC 3379 found 15 ‘link files’ containing suspected child pornography in a folder of the account “Alan”. The account “Alan” had between the 12 January 2010 and the 15 April 2010, the day of arrest, been used to access the files to which the link files pointed. 

7.  The defendant also published 9 images and 497 films containing child pornography by making them available through the peer-to-peer sharing programme ‘eMule’.  The incoming file path where ‘eMule’ was used to store downloaded and uploaded files was D:\eMuleDownloads\Incoming. All files in this path were set to share via the internet thus permitting access by the public.  PC 3379 inspected the file sharing status of ‘eMule’ and confirmed a total of 9 images and 501 films containing suspected child pornography had been shared via the internet.  All except 4 of the films were admitted to be child pornography.  This was highlighted in respect of one film “ChildAmerica.avi” for which there had been 996 requests of which 30 had been accepted for uploading resulting in a total of 2.92 MB data from the file being uploaded and shared onto the internet.

8.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Wong together with the content of the psychological and background reports, in particular that the psychologist is of the opinion that there is no indication to suggest the defendant has paedophilic tendency and that the risk of re-offending is assessed to be low.  I take into account the defendant has no previous convictions. 

Guidelines

9.  In the Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 the Court of Appeal laid down guidelines as to sentence for possession of child pornography. In setting the guidelines the Court of Appeal considered the classification levels adopted in England together with the factors relevant to sentencing referred to in  R v Oliver & Others [2003] 2 Cr App R (S) 64.  I note that in England in April 2007 the sentencing levels identified in Oliver were reviewed and replaced by the Definitive Guideline on the Sexual Offences Act 2003 issued by the Sentencing Guidelines Council.

10.  The first consideration is the appropriate level of the relevant depictions.  The Court of Appeal adopted four classification levels (as opposed to five in England).  The parties have agreed the classification of the images and films as set out in the tables submitted by Mr Ho.  These are as follows:

Level 1 - 15, 533 images and 99 films

Level 2 - 9,131images and 88 films

Level 3 - 8,585 images and 111 films

Level 4 - 7,705 images and 212 films

11.  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.  The Court of Appeal also listed a number of aggravating features including the age of the children depicted; an intention to publish and the number of images. 

12.  Man Kwong Choi concerned a review of sentence in respect of two different cases.  In CAAR 8/2009 the total number of images was 1157 and films 245, which the Court of Appeal regarded as large.  Of these 187 images and 69 films were at Level 4.  The images were all of real children with apparent ages between 5 and 12, with more than half the images showing children with adults.  The defendant who possessed the images for his personal use was 31 with one previous conviction for indecent assault on a 12 year old girl.  The Court of Appeal said a sentence of 3 years imprisonment should have been imposed.

13.  In CAAR 9/2009the total number of images was 8290 and films 205.  Whilst the majority were at Level 1 there were still significant amounts at the other levels including 200 images and 48 films at Level 4.  The ages of the children ranged from 0 to 15, with 634 images involving children with adults.  The defendant who was 20 at the time of sentence also possessed the images for his personal use.  The Court of Appeal said a Training Centre order would have been appropriate and that if the defendant had attained the age of 21 a sentence of 2 years imprisonment would have been appropriate.

14.  The total number of images and films being 40,954 and 510 respectively are substantially more than the two cases subject of review in Man Kwong Choi. 

15.  Almost half of the images however are described as cartoons, which are regarded in most cases as less serious.  Nevertheless those of real children remain very substantial, namely 21,462 images of which 1,055 images are classified as Level 4.  All the 510 films are of real children of which 212 are classified as Level 4.   Again those classified as Level 4 are substantially more than the two cases subject of review in Man Kwong Choi. 

16.  I have been supplied with two ring binder files containing 10% of the images and stills from the films, which are said to represent the range of child pornography found on the computer, together with what is described as Photograph Album, Part II, which contains further images and stills from the films specifically showing very young children.  Some are the same as in the ring binder files.

17.  The stills of the films are accompanied by a description of the film, which descriptions are agreed by the defence.  It is to be noted that in some of the descriptions, particularly the cartoons, reference is only to men and women and not boys and girls.  Having looked at the images it is clear they refer to children and not adults and the description is in this respect incorrect.

18.  From these images and stills the ages of the children can be seen to vary from the very young to teenagers.  Mr Ho specifically referred to A49 as showing a girl of 2 years old. Some of the photos in B19 and the last photo in B24 of Photograph Album, Part II show babies.  The still from film 337 in Photograph Album, Part II describes a child of one year, said to be a step daughter.  Photos 3 and 4, B29 show sexual activity between an adult and a very young child.  Other images of very young children are shown in Photograph Album, Part II.  I note Mr Wong’s submission those involving babies and very young children form only a very small part of the child pornography. 

19.  Mr Wong submits there are no images of sadism, deviant sexual behaviour or exceptional disturbing behaviour.  Whilst there may be no acts of bestiality there are many very disturbing images.  The two stills from A49 together with additional stills from the same film (485) seen in Photograph Album, Part II, are in my view unquestionably disturbing, involving buggery of a very young girl. 

20.  A22 whilst classified as Level 3 the title of the film is “13 year old child raped and crying.” The description of the film reveals disturbing sexual behaviour including a girl being tied up and masked men inserting hard objects into her mouth and private parts resulting in the girl struggling and resisting.   I note the film lasts 14 minutes and 17 seconds. 

21.  The title of A46 includes the father joining in sexual activity with his own children aged 9 and 10.  In A47 a pen is inserted into the private parts of a young girl aged 8.  The films last 12 minutes and 38 seconds and 23 minutes and 01 second respectively.

22.  There are also many images of children being buggered.  This can be seen in the films A42 and A45 which show buggery with a teenage boy and a girl aged 9, films which last 50 minutes and 23 seconds and     5 minutes and 41 seconds respectively. Further acts of buggery can be seen in the photographs in Part B.  

23.  Much of the conduct depicted must have caused fear or distress to the child victims. This is most apparent in A35.  The description of the film includes the girl being tied up.  This film lasts 57 minutes and         54 seconds. One still shows the girl gagged and the other still shows the girl in obvious distress.

24.  The images and films are nothing short of repulsive and disgusting.  As said in Oliver assaults on babies or very young children attract particular repugnance and may by the conduct depicted in the image indicate the likelihood of physical injury to the private parts of the children.  However in passing sentence I take heed of what was said in the Scottish case of Her Majesty’s Advocate v David William Graham [2010] HCJAC 50 that if the sentencer thinks it appropriate to view all or a sample of the images, he should be conscious of the ever-present danger of passing sentence when his emotions have been raised by what he has seen.

25.  As regards the cartoons the court in Oliver referred to pseudo-photographs and said that save in exceptional cases where particularly grotesque images generally beyond the scope of a photograph are depicted these images are to be treated as being at a lower level of seriousness than possession of images of real children.  This distinction is also drawn in Man Kwong Choi at paragraph 16.

26.  Whilst photographs C50 and C175 show young girls gagged and tied; photograph C172 shows a young boy gagged and tied and there are many photographs of acts of buggery there are no particular grotesque images as referred to in Oliver among the cartoons shown to the court.  However in my view one cannot simply overlook the very large quantity of cartoon images and that of the four levels the most were classified as Level 4, namely 6,650. 

The number of images and films

27.  The number of images was said in Man Kwong Choi to be a relevant factor in considering whether there are aggravating features of sentence.  Similarly in Oliver the Court of Appeal said if there is a large number of images this is capable of aggravating the seriousness of a particular offence.  The court there went on to say that it is impossible to specify precision as to numbers and sentencers must make their own assessment of whether the numbers are small or large.

28.  As noted earlier in Man Kwong Choi the court regarded a total of 1157 images and 245 films of real children as large.  In comparison 21,462 images and 510 films of real children at the very least is very large.  The number of images and films classified as Level 4 are also significantly higher.  Account must however be taken not only of the Level 4 child pornography but also of the quantity of pornography classified under the other levels (see HKSAR v Chow Yuen Fai [2010] 1 HKLRD 356 at paragraph 51).

29.  Mr Wong submits the court should not exceed the 3 year guideline in Man Kwong Choi.  This approach appears to have been adopted in HKSAR v Wong Koon Chow, Eddy HCCC 318/2011, a case referred to Mr Wong by the court.  There the defendant pleaded guilty to nine charges, one of which was possession of child pornography.  There was a total of 20,050 still images; 2,149 video files and 8,301 anime images, most of which were of Level 3 and Level 4. 

30.  In Graham the court said that the number of indecent images downloaded by offenders reflects the ease with which they can access such material through the internet and that it was not unusual for offenders to have more than 40,000 images.  The court went on to say that what is a small or large quantity must be, to an extent, a matter of judgment in each particular case.  Accepting a general benchmark would be useful the court was of the opinion that an offender who takes, distributes or possesses a quantity in the low hundreds can properly be said to have accessed a small number of images and images numbered in high hundreds or in thousands can properly said to be large.

31.  Notwithstanding almost half of the images are cartoons, the quantity of the images and films is in my view an aggravating feature of sentence.  I do however accept the submission of Mr Wong that a mathematical approach should not be taken and that in determining the appropriate sentence a sense of proportion is still required.

Intention to publish

32.  Clearly by having the files in “eMule” set to share via the internet there was an intention to publish.  In Man Kwong Choi the court said that an intention to publish is regarded as a significant aggravating feature for which sentences are to be significantly higher. 

33.  Taking into account the total quantity of images and films; the number of images and films at Level 4; the nature of those images; the intention to publish; and that a substantial quantity are cartoons, I am satisfied the proper sentence after trial is 4 years imprisonment.   

Publication

34.  Not only was there an intention to publish.  Examination of the computer revealed that a total of 9 images and 497 films containing child pornography had been shared via the internet.  As noted earlier in respect of one film   “ChildAmerica.avi” there had been 996 requests of which 30 had been accepted for uploading resulting in a total of 2.92 MB data from the file being uploaded and shared onto the internet. 

35.  This is highlighted in figure 6.3, exhibit P9, from which can also be seen the requests and amount of data uploaded in respect of some of the other films. The requests vary from 7 to 11,289 and the data uploaded and shared on the internet ranging from 100 KB to 66.29 MB, with four films having no data uploaded.

36.  As was said in Man Kwong Choi the ready availability of child pornography through the internet considerably facilitates the dissemination of child pornography worldwide. 

37.  Mostly films were distributed.  In R v Somerset [2006] EWCA Crim 2469 the court said that it was unrealistic to suggest that video films should be regarded as the equivalent of a single still image, in particular when some of the films ran for several minutes, and in one case for nearly fifteen minutes.  The court said that a sensible assessment and adjustment would therefore be needed where video footage was involved.  

38.  Somerset was referred to in the Scottish case of Graham where the court said that whether a video clip is worse than a still image will depend in every case on its length, on what it depicts and how it depicts it.  Without attempting any detailed arithmetical computation the court said the sensible approach is simply to make an allowance for the fact that a moving image may be more vivid and corrupting than a still image, however the primary factors to which a sentencer must have regard remain the nature of the images and the extent of the offender’s involvement with child pornography.

39.  I have already referred to the nature and length of some of the films.  The length of the films range from a few seconds to as long as      3 hours and 15 minutes.The total length of all the films subject of both charges is 202 hours 10 minutes and 40 seconds with an average time of 23 minutes and 40 seconds (see the list in Part A of the Photograph Album, Part II).

40.  I take into account this was non-commercial distribution.  This however may not be significant in the context of child pornography.  The court in Graham when considering what constitutes commercial distribution of indecent images noted that there appears to be little commercial exchange of child pornography and that most material can be obtained by offenders without any financial outlay.  Offenders were said to often trade images and allow other offenders access to the material in their possession.  Cases were referred to in which images were distributed through file sharing programmes, just like ‘eMule’ in this case.

41.  The court concluded that whilst each case turns on its own facts, in general, to distribute indecent images on a large scale, by exchanging them or placing them on shared computer folders, should be equiparated with commercial distribution.  The court further said that although such offenders do not benefit financially, they benefit by having the opportunity to access similar material.

42.  Taking into account the number of films was just under 500; the manner of distribution; and the length and nature of the films, with a substantial amount being Level 4, I am satisfied the proper sentence after trial is 4 years and 9 months imprisonment.

Good character

43.  In Oliver the court said that some, but not much weight should be attached to good character.  The guidelines in Man Kwong Choi are those for a first time offender who is in possession of child pornography.  I am satisfied the defendant having no previous convictions the sentences should be reduced by 1 month.

Delay

44.  Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary (see for example HKSAR v Cheung Suet Ting CACC 226/2009).

45.  Mr Ho has supplied to the court a four page chronology of the major events.  The defendant was arrested in July 2010 nearly 3 months after the computers were seized from his home and subsequently charged over 17 months later in December 2011.  Most of this time appears to be have been spent responding to advice from the Department of Justice.  After charge the case was duly transferred to the District Court and a trial date set for April 2012.  The trial was however adjourned at the request of the defence in order for the defence to obtain their own computer expert.  This resulted in the trial being adjourned until December last year.  Sentence today is just over 3 years after the computers were seized from the defendant’s home and 2 years and 9 months since the defendant’s arrest. 

46.  Mr Wong submits the defendant and his family have suffered much stress as a result of the long wait.  This is referred to in the background report at paragraph 8 where the father comments that his son has faced great pressure for over two years and that he has expressed his despondent feeling toward the process that had been dragged on too long.

47.  Mr Wong does not seek to say there has been undue delay or attach blame to the prosecution for the time taken to charge the defendant but asks that I take this delay into account in passing sentence.  Due to the large number of suspected child pornography found on the computer time was clearly required to investigate and consider the case.  However in my view there is nothing in the chronology which appears to justify the taking of over 17 months from arrest to charge.  The matter could reasonably have been brought to court earlier than it was.  

48.  There has been no delay in the court proceedings.  A trial date was set down within 4 months of the defendant first appearing in the Magistracy.  The trial was however adjourned for the defence to instruct their own computer expert.  In September last year after the defence had instructed their own expert a new trial date was set down commencing on the 21 December 2012.

49.  Although the defendant has at no time ever acknowledged his guilt taking into account the delay in charging the defendant I am satisfied some credit should be given in sentence for this delay (see HKSAR v Wong Ka Wah CACC 260/2006).  In all the circumstances I reduce each sentence by 2 months imprisonment. 

50.  Mr Wong submits further reduction in sentence should be given on account of the time saved by the defendant agreeing the images and files were child pornography.  Although facts were admitted on the first day of trial (Friday 21 December 2012) pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P1) these did not specifically admit the images and films were child pornography. All that was admitted was the opinion of a police officer that the images were child pornography and under which level he classified them (see paragraphs 12 & 13).

51.  This resulted in the trial being adjourned until the Monday.  No agreement having been reached the trial was further adjournment to the 27 December.  Only on this day did the defence admit the quantity of images and films which were child pornography within the definition of section 2 of the Prevention of Child Pornography Ordinance (see exhibit P1A, paragraph 18).  

52.  A pre-trial review had been held on the 28 September 2012 in which direction had been given for all admitted facts to be filed in court 10 days prior to trial. This was not done.  At this time the court was informed the only issue was one of knowledge.  No mention was made that there was any issue concerning whether any of the images and/or films were child pornography. 

53.  In the circumstances I am satisfied no further reduction should be given on account of the admission the images and films were child pornography.  I am satisfied there are no other grounds to further reduce sentence.

Sentence

54.  The defendant is convicted and sentenced as follows:

Charge 1 – 3 years and 9 months imprisonment;

Charge 2 – 4 years and 6 months imprisonment;

Totality

55.  Having taken into account the intention to publish in assessing the sentence for possession I order concurrent sentences.  I am satisfied a total sentence of 4 years and 6 months imprisonment properly reflects the defendant’s criminality on the two charges.