Rules call for automatic jail terms The Court of Appeal yesterday unveiled tougher sentencing guidelines for the possession of child pornography that call on judges to hand out automatic jail terms in all but exceptional cases. First-time offenders - even those with thousands of images depicting sexual relations between children and adults - have often received community service, fines or suspended jail sentences. Instead, all offenders should be slapped with minimum prison terms ranging from one to six months in less serious cases to as much as three years, reflecting the seriousness of a 'disgusting' crime, the justices ruled. Only in rare cases would probation, a community service order, or fine be applied. 'Some may regard the guidelines as on the harsh side,' wrote Mr Justice Geoffrey Ma Tao-li, Chief Judge of the High Court. 'However, given the nature of the offence, they need to be.' Previously, judges could impose five-year prison terms and fines of HK$1 million, but such penalties were rare and sentencing was inconsistent, Justice Ma said. The judge threw cold water on any suggestion that viewing child pornography at home was a victimless crime. 'This is much too narrow a view,' Justice Ma wrote in a 16-page ruling co-authored by Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock. 'The courts are obliged to take into account broader considerations, the main one here being the protection of vulnerable children. 'But for the demand of persons wanting to possess child pornography, there would not be the production, distribution or publication of it.' While people have been arrested for what they claimed is artwork or computer-generated images of children, the rules still leave room for flexibility in sentencing, said University of Hong Kong law professor Eric Cheung Tat-ming. 'It is quite clear that the High Court wants to send out a clear message to the public to deter these offences,' he said. 'It probably shows that the lower courts - the magistracy courts - may take a less serious view of the offence.' The guidelines come after prosecutors asked for a review of sentences imposed on two men convicted of possessing child pornography. While yesterday's guidelines are intended to apply to future cases, Man Kwong-choi and Ho Yan-kiu should have been handed minimum three- and two-year sentences respectively, the ruling said. Man, 31, received a six-month suspended sentence and a HK$20,000 fine, and Ho, 20, got 200 hours of community service. Both were 'manifestly inadequate' punishments, wrote Justice Ma. 'Possession of child pornography should generally attract an immediate custodial sentence unless special circumstances exist,' he said. Man was found with about 1,150 images ranging from children in erotic poses to sexual acts with adults and even sadism. He also had about 245 video files. Ho had a collection of almost 8,300 photos and about 205 videos. Justice Ma and his colleagues viewed some pornographic material during the sentencing review. 'They are nothing short of disgusting and demonstrate a depravity that causes revulsion,' he wrote. 'Within society, we are sure they would be regarded as simply and totally unacceptable.' The 'worldwide problem' is getting worse because paedophiles can easily transfer images over the internet so deterrence must be a key aim behind the new rules, Justice Ma wrote. 'The harm to children cannot be stressed enough,' says the ruling. 'They are degraded, dehumanised, traumatised and lose all semblance of dignity. Many of the victims grow up mentally scarred.' Sentencing guidelines Recommended starting points: Level 1 Images of erotic posing with no sexual activity: one to six months' jail for large number of images; in rare cases with small number of images (eg. fewer than 20): community service order, probation or fine Level 2 Sexual activity by children: up to nine months' jail Level 3 Sexual activity other than full sex between adults and children: six months to a year in jail Level 4 Full sex between adults and children; sadism or bestiality: one to three years' jail Source: Court of Appeal
