HKSAR v. GELIZON LORDJEL MANGILIMAN

DCCC 957/2017

[2018] HKDC 512

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 957 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Gelizon Lordjel Mangiliman 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.

2.  The particulars of offence are that Mr Gelizon on 19 April 2016 at Room 1, 10^th Floor, Star Mansion, No 3 Minden Row, Tsim Sha Tsui, Kowloon, in Hong Kong, had in his possession child pornography, namely 32 photos and 138 video clips containing child pornography stored in his notebook computer.

Admitted facts

3.  The facts admitted by Mr Gelizon may be summarized as follows.

4.  During the early morning of 19 April 2016, police raided Mr Gelizon’s residence with a search warrant.  He shared the premises (measuring about 300 square feet) with his parents and younger sister.  Stored inside a notebook computer placed inside the living room were found 22 files containing suspected child pornography.  The computer was seized and later subjected to forensic examination.  Altogether 32 photographs and 138 video clips containing child pornography were found:-

(a) 4 video clips were classified as Level 1;

(b) 15 photographs and 94 video clips were classified as Level 2;

(c) One video clip was classified as Level 3; and

(d) 17 photographs and 39 video clips were classified as Level 4.

5.  All the child pornography in question contain real children engaged in erotic sexual posing, oral sex, masturbation and sexual intercourses.  All of these fall within the definition of “Child pornography” for the purposes of Section 2 of Cap 579.

6.  At the scene, Mr Gelizon was arrested forthwith.  Under caution, he remained silent as was his right.

7.  Later, two VRIs were conducted.  During the first one, he admitted, inter alia, that:-

(a) He purchased the computer which was used solely by him on the strength of a password known only to him;

(b) He downloaded child pornography from the websites offering such;

(c) He last logged on one such website only a few days prior;

(d) He stored the downloaded material in the computer for his own viewing; and

(e) He did not disseminate the child pornography.

8.  During the second VRI, the subject photographs and video clips were shown to Mr Gelizon.  However, he refused to view the material claiming he had changed his lifestyle and no longer wished to view such material; he admitted the material recovered from his computer was child pornography.

9.  What follows is a more detailed breakdown of the relevant photographs and video clips.

10.  I will start with the more serious Level 4 material and end with the least serious Level 1 material.

11.  For the Level 4 material – penetrative sexual activity between adults and children, sadism or bestiality – there were 17 such photographs and 39 such video clips; the number of children between the ages of 5 and 10 involved were 39 and the number of children between the ages of 11 and 15 involved were 33. There were 3 video clips and one photograph showing sexual intercourse between adults and children without the use of condom.

12.  For the Level 3 material – non-penetrative sexual activity between adults and children – there was one such video clip involving one child between 5 and 10 years old and one child between 11 and 15 years old.

13.  For the Level 2 material – sexual material between children or solo masturbation by a child – there were 15 such photographs and 94 such video clips; there were 41 children between the ages of 5 and 10 and 139 children between the ages of 11 and 15 involved.  Two of the video clips show insertion of hard object into the private parts of children; and 13 of the video clips show sexual intercourse with child without the use of condom.

14.  For the Level 1 material – images depicting erotic posing with no sexual activity – there were 4 such video clips involving two children between the ages of 5 and 10 and 4 children between the ages of 11 and 15 years old involved.

Criminal record

15.  Mr Gelizon enjoys a clear record.

Antecedents

16.  The antecedents statement shows that Mr Gelizon is 33 years old (31 at the time of the offence); he received secondary education in Hong Kong and tertiary education in the Philippines.  He had worked as a sales executive in Hong Kong.  He is single and lived with his parents in TST.  He also has a younger sister of adult age.

Mitigation

17.  Mr Christopher Grounds of counsel mitigated on Mr Gelizon’s behalf.

18.  Mr Grounds relied on a set of written submissions supplemented by oral remarks.

19.  The following is a summary of the mitigation submissions.

20.  Mr Grounds submitted that Mr Gelizon comes from a close knit but kind family; that Mr Gelizon senior is in remission for a colon cancer which had spread to his liver; that Mr Gelizon’s mother is a Tagalog interpreter; that his sister works for a large corporation and has written a mitigation letter in support (submitted as GLM-1).  Mr Gelizon’s local priest has also written a mitigation letter (submitted as GLM-2).  Mr Gelizon helped his mother make scented candles which were then donated to the church to raise funds for the latter’s mission to seafarers.  Mr Gelizon was educated in Hong Kong to F3 and completed his education in the Philippines.  He however did not finish his bachelor’s degree in marketing.  He then ran his own business there producing concrete blocks for the construction industry.  He sold the business in 2009 after some devastating typhoons which paralyzed the business.  He then returned to Hong Kong and since 2010 worked for an e-commerce logistics solution company until he resigned upon being charged in October 2017 (sic).  Whilst working there, he climbed from being a customer service officer to being a Solution Sales Manager with a monthly salary of $17,000 and a handsome commission of several tens of thousands.

21.  It is submitted that the criminal record thus created by this case will affect his future employment prospects.  It is further submitted that Mr Gelizon suffers from a plethora of emotions from fear through to anxiety – two years of hell from arrest to sentencing.

22.  It is submitted that Mr Gelizon has come to understand that the end user who downloads child pornography enables the children to be exploited by the maker thereof; that he is truly sorry for what he had done.

23.  Mr Grounds urges the court to give a further short discount for Mr Gelizon’s positive good character.

24.  Mr Grounds relied on the following case authorities most of which are District Court cases which are not-binding on this court:-

(a) Secretary for Justice v Man Kwong Choi & Anor, CACC 8 & 9/2007 (reported in [2008] 5 HKLRD 519, [2008] 4 HKC 565);

(b) HKSAR v Leung Ngai Hang, DCCC 804/2015;

(c) HKSAR v Liu Chi Shing, DCCC 367/2017;

(d) HKSAR v Yuen Chuen Fu, DCCC 141/2017;

(e) HKSAR v Lo Kai Ming, Gary, DCCC 449/2016;

(f) HKSAR v Leung Kong Kei, DCCC 82/2017; and

(g) HKSAR v Choy Ka Leung, CACC 365/2012.

25.  Mr Grounds relied on Man Kwong Choi for general sentencing principles in this type of cases which principles were neatly summarized in Leung Ngai Hang.  Mr Grounds relied on Liu Chi Shing and Yuen Chuen Fu to submit that cases involving similar numbers of Level 4 material did not usually adopt a starting point of more than 18 months’ imprisonment.  He directed the court’s attention also to Lo Kai Ming, Gary, where a starting point of 21 months’ imprisonment was adopted for a case involving 76 video clips at Level 4 (about double the number of the same level of video clips in the present case).

26.  Mr Grounds submitted that, taking into account the images themselves and the range from Levels 1 to 4, that Mr Gelizon has no previous similar record, and there is no evidence of intention to disseminate the material, the starting point should not exceed 18 months.

27.  On mitigating factors, Mr Grounds relied on Mr Gelizon’s cooperation with the police by providing upfront his password to access the subject computer.

28.  Next, Mr Grounds seeks to rely on delay in prosecution by saying that there had been a time gap of 18 months (sic) from arrest to charge.  In particular, Mr Grounds pointed to Yuen Chuen Fu who was arrested the same day as Mr Gelizon but who was sentenced on 16 June 2017.  Mr Grounds prayed in aid Leung Kong Kei and Lo Kai Ming, Gary, to suggest that a further discount could be given to Mr Gelizon.

29.  Mr Grounds continued to submit that there were no images of sadism or bestiality here.

30.  It was also submitted that Mr Gelizon downloaded the material in April 2016 which was the time that his father was diagnosed to have cancer.

Prosecution’s chronology of events from arrest to prosecution

31.  A chronology prepared by the prosecution attached to the letter of Ms Irene Poon, SPP, dated 26 April 2018 shows that there was a reasonably wide time gap of 8 months between receipt of file by DOJ from the police to the rendering of legal advice in September 2017.  Ms Poon attributed this time gap to the “deferring [of] the rendering of legal advice upon receipt of the police duplicate file as [she] originally intended to obtain further information on the classification of the relevant child pornography discovered in this case by way of a breakdown of the age group of children involved and also to obtain further information on the presence of aggravating sentencing features (if any) etc”.

Prosecution’s answer on when the child pornographic material was downloaded

32.  According to the same letter from Ms Irene Poon which also attached a copy statement of PC 8084 of CSTCB dated 23 April 2018 and a table setting out the Photos/Videos containing Child Pornography in this case, the bulk of the subject child pornography in this case was downloaded between October 2010 and March 2016, with the remaining 6 files containing child pornography downloaded between 2 April and 17 April 2016.

Psychiatric report

33.  On the topic of what level of stress Mr Gelizon had been suffering under, the psychiatric report is rather silent.  It merely documented that Mr Gelizon’s pervasive mood was stable although he reported that he became more anxious-prone after his arrest.

Psychological report

34.  The psychological report stated that Mr Gelizon claimed that he started downloading pornographic videos and photos in 2013, that he usually downloaded bulk files of pornography which also included child pornography.  Although Mr Gelizon denied downloading child pornography intentionally, he failed to explain what maintained his “curiosity” about child pornography after viewing it for at least 3 years.

35.  The report also stated that there was insufficient ground to suggest that Mr Gelizon had a Pedophilic Disorder, a paraphilic disorder involving sexual arousal, urges and behavior towards prepubescent children.  The report concluded that his risk of sexual re-offending was not high.

Further mitigation in light of the reports

36.  The following is a summary of the further mitigation submissions made by Mr Grounds on behalf of Mr Gelizon.

37.  The reports have been explained to Mr Gelizon.

38.  There is a small part of the psychiatric report which is disputed: Mr Gelizon denied having told the psychiatrist that he had used street drugs at all.

39.  Mr Grounds submitted that there are no images of sadism, distress, or the caging of children in this case.

40.  It is submitted that the starting point of 18 months suggested on the last occasion is correct even having regard to the percentage distribution of child pornographic material across the 4 levels: Mr Grounds suggested a starting point of 12 months for the Level 4 material alone and 6 months for the Level 2 material alone.  Mr Grounds re-iterates the importance of discretion in the hands of individual judges.

41.  Mr Grounds acknowledged that as a result of the prosecution’s further input, the material was started to be downloaded as early as 2010; or at least as early as 2013 by Mr Gelizon’s own admission to the psychologist.  Hence, Mr Grounds admitted that the previous submission that Mr Gelizon downloaded the material in April 2016, at about the time his father’s cancer was confirmed, would have less force.

42.  Mr Grounds handed up copy pages 381-384 of the 2011 edition of Cross & Cheung’s Sentencing in Hong Kong (on the topic of “Delay in prosecuting”) and submitted that there was no need to prove actual stress, that a deduction suffices, and that the majority of courts infer it.  In this respect, Mr Grounds handed up the case of Attorney General v Ling Kar Fai (No 2) [1997] 2 HKC 651 where, at 654F, Litton VP (as he then was), when giving the judgment of the Court of Appeal, said, “The offences, as we have said, go back nearly 10 years.  He was arrested in January 1991: nearly 6½ years ago.  He has therefore been under the strain of legal proceedings for a very long time.  The result seems [to] be that his wife suffered much in health.”

43.  Mr Grounds submitted that the 9 months’ (should be 8 months’) time gap before the delivery of legal advice was delay in the context of the relatively short sentence that was likely to be imposed on Mr Gelizon.

Sentence

44.  Before sentencing, I have ordered a psychiatric report which was to examine the level of stress claimed to have been suffered by Mr Gelizon.  I have also ordered a psychological report on him as is the general practice in this kind of case.

45.  I have asked the prosecution to provide a chronology of events explaining any delay (if any) and to assist the court in respect of when the child pornography was downloaded onto Mr Gelizon’s computer.

46.  I have considered the mitigation submissions made and the authorities referred to by Mr Grounds.

47.  I have read the mitigation letters contents of which are generally that Mr Gelizon is a considerate, caring, responsible, hardworking, courteous and trustworthy person.

48.  I have viewed a representative sample of the photos and some captured images from the video clips involved in this case.

49.  I have considered the contents of the various reports made on Mr Gelizon.

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

51.  In Man Kwong Choi, 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.  I note that that case has set out sentencing guidelines applicable to possession of various levels of material involving real children (as is the case here).  For Level 4 material, the starting point should generally be between 12 and 36 months.  For Level 2 material, the starting point should generally be up to 9 months.

52.  Because of Mr Gelizon’s early indication of plea of guilty which he has materialized, I will give him the usual 1/3 discount.  Because of his positive good character, I will give him an additional small credit.

53.  There are no other mitigating factors warranting any further discounts. In this respect, I note that delay in prosecution alone has never been a mitigation factor (see generally Cross & Cheung’s treatment of the topic in Sentencing in Hong Kong, 7^th Ed pp 350-353).  What must be present is unreasonable delay not attributable to the defendant coupled with some effect on him/her, such as significant additional stress or disruption in his/her attempt to rehabilitate him/herself in the meantime.  It has even been suggested that delay caused by dilatory or neglectful conduct by the State may result in a discount if the court thinks it an appropriate means of marking its disapproval of that conduct.

54.  In the Court of Appeal authority of Choy Ka Leung, one of the cases on which Mr Grounds relied for the issue of delay, the applicant had engaged the services of a psychiatrist who was able to confirm that the applicant had suffered from anxiety, insomnia and depression.

55.  In this particular case, although there had been a time gap of 8 months between receipt of file by DOJ and the rendering of legal advice, I do not find there to be an unreasonable delay bearing in mind the following two factors:-

(a) Ms Poon explained that the prosecution needed to obtain further information from the police regarding the breakdown of the age group of children involved and the presence of aggravating sentencing features (if any) etc before delivering legal advice; and

(b) Some time would in any event have been required for the DOJ to complete the legal advice even in the absence of the above factor.

56.  Furthermore, the only comment made by the psychiatrist on the topic of stress was that Mr Gelizon claimed that he had become more anxious-prone after his arrest.  As such, I cannot accept nor do I have sufficient material from which to infer that Mr Gelizon had suffered significant additional stress as a result of the time taken from arrest to charge over and above the level of stress that would have been suffered by anyone who has been arrested and awaits being dealt with one way or the other by the authorities.  In this connection, I note that Mr Gelizon continued in employment until he was charged in September 2017.

57.  Taking all relevant factors into consideration, if Mr Gelizon had possessed the Level 4 material only (which constituted 33% of the entire material), I would have adopted a starting point of 16 months’ imprisonment.  However, I cannot ignore the fact that he also possessed a substantial amount of Level 2 material (constituting 64% of the entire material).  As such, I will enhance the starting point by three months resulting in one of 19 months’ imprisonment.  For his positive good character, I will take away one month before applying the discount for plea.

(Mr Gelizon, please stand)

58.  Giving him the 1/3 discount, the sentence for Mr Gelizon will be one of 12 months’ imprisonment.