Court/Judicial body: Court of Appeals
Date: July 16, 2008 CRC
Provisions: Article 34: Sexual Exploitation
Domestic provisions: The Prevention of Child Pornography Ordinance (Cap.579) (the PCPO) (Section 3(3) Offences relating to child pornography; Section 2 Definition of “Child Pornography” and “Pornographic Depiction”)
Background: Two defendants were convicted and sentenced after trials in the magistrates’ court of possession of child pornography in violation of the Prevention of Child Pornography Ordinance. Arguing that these sentences were inadequate in light of the nature of the crime committed and the evidence presented, the Secretary for Justice then applied for a review of both sentences.
Issue and resolution: Child pornography. Although the Court of Appeals did not increase the sentences imposed on the defendants involved in this case, it did provide guidelines to apply to sentences handed down following its judgment. The Court classified child pornography offences into four levels, ranging from the least serious to the most serious acts, and set forth the appropriate sentence for each level. Additionally, the Court noted mitigating and aggravating factors to consider during sentencing. It is noteworthy that the Court’s sentencing levels reflect the Court’s view that possession of child pornography should generally warrant imprisonment unless special circumstances exist.
Court reasoning: Given the inconsistent sentencing practice of courts at the time the defendants were sentenced and the fact that the Court’s new sentencing guidelines would increase the defendants’ sentences considerably, the Court determined that the new guidelines should only apply to possession of child pornography offences committed after the date of the judgment. However, the Court noted that the defendants’ sentences were “manifestly inadequate” and indicated what the appropriate sentences for the defendants would be if the guidelines provided by the Court had been applicable to the defendants. Additionally, the Court recommended that prosecution of cases with similar facts should take place in the District Court, and not the magistrates’ court where the maximum permitted sentences is 2 years, particularly where there has been a previous conviction for an offence involving a child. The Court emphasized the importance of the sentencing judge examining the images, or at least a representative sample, to determine the gravity of the offence.
Excerpt citing CRC and other relevant human rights 11. As can be seen from the debates in the Legislative Council preceding the introduction of the PCPO, its roots lie in art.34 of the United Nations Convention on the Rights of the Child (which applies to Hong Kong) protecting children against all forms of sexual exploitation and abuse. Article 34 states: Article 34. States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in porno-graphic performances and materials. 12. From the above, it can instantly be seen that the main aspect relevant to sentencing for offences under s.3 of the PCPO will be one of deterrence. This has two facets which have to be considered: first (and the more important), the protection of the victims of child pornography, namely the exploited children themselves; secondly, society generally.
CRIN comments: CRIN believes this decision is consistent with the CRC in that the possession, production, sale and distribution of child pornography should be clearly prohibited under both Article 34 of the CRC and the Optional Protocol on the sale of children, child prostitution and child pornography. Also in line with the Court’s reasoning, persons who violate these laws should be prosecuted and given sentences appropriate to the nature and severity of their offence.
Citation:  5 HKLRD 519
Link to full judgement: http://compendium.itcilo.org/en/compendium-decisions/iii