28 September 2008

SECRETARY FOR JUSTICE v. MAN KWONG CHOI & HO YAN KIU CAAR 8 / 2007 and CAAR 9 / 2007

S’s words:-

This judgment provides the guidelines for sentences in the offence of possession of child pornography. For images with no sexual activities, a defendant may still have the chance not to be imprisoned. However, as soon as sexual activities can be found from child pornography, immediate custodial sentence cannot be avoided.

So, if one wants to browse through websites with child pornography, he takes the risk of committing an offence of possession of child pornography if he downloads the images and keeps the same.

How about if the cache of his computer keeps the image?

--- quote from judgment ---

Date of Handing Down Judgment : 16 July 2008

The Prevention of Child Pornography Ordinance, Cap.579 (“the PCPO”) was enacted to deal with the problems associated with child pornography. We are in these applications for review concerned with the appropriate sentences for the offence of possession of child pornography. Section 3(3) of the PCPO states :

“3. Offences relating to child pornography
(3) Any person who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography) commits an offence and is liable —

on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years; or

on summary conviction to a fine of $500,000 and to imprisonment for 2 years.”

Guidelines
We have in mind the following guidelines appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children) :

Level 1
The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

Level 2
In the case of Level 2 (“sexual activity between children, or solo masturbation by a child”), this is already much more serious than mere posing. Here, depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even the possession of a few depictions at this level will generally attract a custodial sentence.

Level 3
For Level 3 cases (“non penetrative sexual activity between adults and children”), the degree of seriousness is increased even further. Again, depending on the numbers involved, sentences of between 6 and 12 months will be appropriate.

Level 4
We consider Level 4 cases (“penetrative sexual activity between children and adults” and “sadism or bestiality”) as meriting the most serious treatment. Here, at Level 4, the range of custodial sentences should generally be from 12 months (even for a few images) to 36 months.

The four levels of sentence set out in the previous paragraph provide starting points for sentence after trial. As in any other case, there may be mitigating or aggravating factors that will have to be taken into account.

The principal mitigating factor will be a timely plea of guilty but the usual principles of sentencing will otherwise apply.

Aggravating features would include the following :

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

The age of the children depicted. Where the depictions involve particularly young children, this would be an important consideration.

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.

As mentioned earlier, the number of images is relevant.

It is important to stress that we are, in the two cases now before us, solely concerned with offences of possession of child pornography. Higher maximum sentences are provided under section 3(1) and (2) of the PCPO where more than mere possession is involved.

Who can be LEGAL EXECUTIVES in future?

The Law Society of Hong Kong has recently issued a set of benchmarks for legal executive courses that entitle their graduates to describe themselves as "Legal Executive" in law firms ("Benchmarks"). The Benchmarks will apply to courses commencing from the academic year 2008/09.

The following courses commencing from the academic year 2008/09 have met the new Benchmarks:-

  1. Advanced Diploma in Legal Studies (Professional Stream) from the School of Professional and Continuing Education of the University of Hong Kong;

  2. Higher Diploma in Legal and Administrative Studies from the Hong Kong Institute of Vocational Education (Tuen Mun); and

  3. Professional Diploma in Legal Executive Studies from the School of Continuing and Professional Studies, the Chinese University of Hong Kong and the English Institute of Legal Executives.

There are further new admission requirements for such Legal Executives Courses.

The purpose of making this new Benchmarks is good. However, it is still far away from improving the qualities of those existing Legal Executives and those intended to be Legal Executives.

Besides, apart from the title "Legal Executive", the works to be assigned to Legal Executives or Litigation Clerks/Conveyancing Clerks are not very much different. To be frank to say, only a very small portion of Legal Executives would be entrusted to attend 3-minutes hearings as an advocate on behalf of their employers.

Chinese Judgments of Jurisprudential Value

Contents from The Law Society of Hong Kong:-

"The Judiciary Administrator has advised the Judiciary has uploaded selected judgments from 1997 Chinese judgments of jurisprudential value with an English translation on to its website at:-

http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp."

The Judiciary finally decided to upload English translations of useful Chinese judgments to its website. My personal comment is: "Better than None".