HKSAR v. CHAN KIN TO

DCCC 744/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 744 OF 2016

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REASONS FOR SENTENCE

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The Charge

1.  The defendant (male) (aged 25) pleaded guilty to a single charge of “Possession of child pornography”, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.

The Facts

2.  During an anti-child pornography operation conducted by the police, it was found that someone had downloaded child pornography materials at an internet address.  As a result, the police executed a search warrant and searched the defendant’s residence in Tai Ping Estate, Sheung Shui, New Territories on 4 August 2015 in his presence.

3.  Upon preliminary examination on the defendant’s computer found inside his bed room, the police found screenshots containing suspected child pornography stored inside the computer.

4.  The defendant was immediately arrested and under caution at the scene, he admitted possession of the subject child pornography.  He further admitted that he had downloaded the subject photographs and video clips containing child pornography free of charge from the internet for his own viewing out of curiosity.  According to the defendant, he never disseminated the same to others via the internet.  Upon further examination by the police, there were a total of 911 photos and 82 video clips of child pornography stored in the computer and all of these materials depicted real children under the age of 16. They were grouped under the following categorisation:-

(a) level 1: being images depicting erotic posing, with no sexual activity (438 photos and 0 video clip);

(b) level 2: sexual activity between children or solo masturbation by a child (28 photos and 0 video clip);

(c) level 3: non-penetrative sexual activity between adults and children (316 photos and 39 video clips); and

(d) level 4: being images depicting penetrative sexual activity between children and adults, sadism or bestiality (129 photos and 82 video clips).

Defendant’s Background and Mitigation

5.  The defendant is single with a clear record.  He has a Form 5 education level.  He had been working stably as a warehouse assistant since 17.  His parents divorced 10 years ago and he lives together with his mother and sister in a public housing estate in Sheung Shui.

6.  Mr Hui, his counsel, stressed that the defendant is now very remorseful and regretted what he has done.

7.  The defendant had promised to receive psychological treatment during and after serving his sentence and, because of this, Mr Hui submitted that the chance of his re-offending is low.

8.  Mr Hui told the court that the defendant had downloaded the pornographic material from the internet for his self-viewing only and there has never been any distribution or publication of those materials.  He also pointed out that the defendant had made full confession to the police after his arrest and pleaded guilty to the court therefore saving the court’s time.  In terms of the quantity of the photographs and video clips, Mr Hui also submitted that it is not the worst case.  In a way, the defendant was just so obsessed with pornographic materials involving little girls and caught inside the cyber world, he just foolishly minimized his offending behavior and self-deceived that his offence was un-detectable.  All in all, Mr Hui urged the court to be as lenient to the defendant as possible.

9.  I have on the last occasion adjourned the sentence for a psychological report for the defendant.  This morning, I have the benefit of reading the report, the content of which was fully accepted by the defendant.

Sentencing Considerations

10.  In sentencing, I took into account of the defendant’s plea, his clear record, the mitigation put forward, as well as the case authority submitted by Mr Hui for my consideration.

11.  The statutory maximum in respect for this offence is for 5 years’ imprisonment and a fine of HK$1 million on indictment.

12.  According to the leading case Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 as submitted, the Court of Appeal made it plain that sentence for this offence shall focus on the deterrence to protect children who are subject to sexual exploitation and moral depravity.  When the number of video clips (especially Level 4 material) is large, the sentence will generally be substantial.  The court took the view that for Level 4 cases, the most serious treatment and the sentence generally will be between 12 months to 36 months.

13.  The court also made it clear that the aforesaid level of sentence were meant to be starting points only and there would be aggravating features that would enhance the starting points.  One of the aggravating features identified by the Court of Appeal is the age of the children depicted.  Where the depiction involved particularly young children, this would be an important consideration.

14.  In HKSAR v Choy Ka Leung, CACC 365/2012, Yeung VP said that in cases that involved one or more of the aggravating features, then the starting point will be increased and will well exceed 3 years, bearing in mind the maximum sentence is 5 years’ imprisonment.

15.  I have taken into account everything that can be said on behalf of the defendant.

16.  As said, I have also obtained a psychological report in respect of the defendant.  The clinical psychologist formed the view that the defendant was naïve, passive and socially inadequate who appeared to be uninterested in interacting with people including women.  He preferred solitary activities such as playing online game and masturbation.  He was so preoccupied with masturbation which he had to perform almost every day.  The psychologist said that the defendant displayed features of paedophilic disorder, which is a kind of deviant sexual interest to the prepubescent children.  His insight into his problems was limited and his risk of re-offending was estimated to be moderate.  Psychological treatment targeting at his deviant sexual interest, social skills and offending behavior is recommended.

17.  As said, all of the video clips of the present case consist of real children and the vast majority of the photos and the video clips had depicted girls whose age is between 5 to 9.

18.  I have also viewed a photo album of the child pornography in question.  It can be seen that in all the photos, very young children were depicted in the photos.  I can see that those young children were clearly being exploited in those photos.  As said in the summary of facts which was also agreed by the defendant, 84 photographs and 43 video clips containing child pornography which involved penetrative sexual activities between adults and children depicted sexual intercourse without using condom.  Around 104 video clips containing child pornography which involved penetrative sexual activities between adults and children depicted ejaculation either on face or even inside the vagina of the children concerned.  Meanwhile at least 19 video clips containing child pornography depicted insertion of a hard object into the private parts of the child involved.  At least 45 photographs and 2 video clips containing child pornography depicted the children being tied up.  As properly described in Man Kwong Choi by the Court of Appeal:-

“they are nothing short of disgusting and demonstrated a depravity that causes revulsion, and, within society, we are sure they would be regarded as simply and totally unacceptable.”

This is clearly an aggravating factor present in this case that I cannot ignore.

19.  A serious view must be taken against those who possess child pornography and, for the protection of the children and the society generally, a deterrent sentence is clearly called for.

20.  I have compared the numbers of the Level 4 images in this case with Choy Ka Leung.  In that case, the number of Level 4 photos is 145 and the video clip is only 27.  The children involved are aged between 2 to 9 years.  The Court of Appeal did not interfere with the ultimate sentence of 22 months’ imprisonment after a guilty plea.

21.  The total numbers of Level 4 photos and video clips of the present case is also 172.  However, in all fairness to the defendant, in terms of the total numbers of the child pornography material involved in the Choy Ka Leung, it is admittedly more than the present case but I must say the bulk of the numbers were at the Level 1 category which was less harmful than in the case of Levels 2 to 4.

22.  I therefore took a moderate starting point of 27 months as urged by Mr Hui and because of the aggravating features identified in this case, it will be increased by 3 months to 30 months.

23.  After giving the defendant one-third discount on account of his plea, which I can see is the only effective mitigating factor, the sentence that the defendant shall receive for this offence is, therefore, 20 months’ imprisonment.

24.  I shall also refer his psychological report to the CSD for follow-up action.