## Facts

- Man Kwong Choi and Ho Yan Kiu were separately convicted in the Magistrates’ Court of **possessing child pornography** contrary to **s.3(3) of the Prevention of Child Pornography Ordinance (Cap. 579) (PCPO)**.
- Each respondent possessed **hundreds of graphic child‑pornographic images** stored for private use on personal computer equipment.
- Choi had a **previous conviction involving sexual assault of a minor**; his collection largely involved **children depicted in sexual activity with adults**, including more serious content.
- Ho was **under 21** at the time of sentencing; his collection largely involved **children engaged in solo erotic or sexual acts** (and related explicit posing), rather than adult‑child intercourse.
- The magistrate sentenced **Choi** to **six months’ imprisonment, suspended for two years, plus a HK$20,000 fine**.
- The magistrate sentenced **Ho** to **200 hours of community service**.
- The **Secretary for Justice** applied to the **Court of Appeal** for **review of sentence** in both matters, arguing the sentences were **manifestly inadequate** and that sentencing practice for PCPO possession offences had become inconsistent and unduly lenient.

## Issues

1. Whether the sentences imposed for possession of child pornography were **manifestly inadequate** and should be increased on the Secretary for Justice’s applications for sentence review.
2. Whether the Court of Appeal should issue a **structured sentencing framework** for future cases under s.3(3) PCPO to reduce disparity.
3. If new guideline ranges were announced, whether they should apply **to offences committed before** the date of judgment.

## Decision

- The Court of Appeal held that the respondents’ sentences were **manifestly inadequate** when measured against the seriousness of possessing child pornography and the statutory maximum penalties.
- The Court **did not increase** either sentence, because the respondents had been sentenced against a background of inconsistent, generally more lenient prior practice; applying a materially higher tariff to past offending would be unfair.
- The Court issued **prospective sentencing guidelines** for possession of child pornography involving real children, creating **four levels** of seriousness with indicative custodial ranges (as **starting points after trial** for a first‑time offender), subject to ordinary mitigation and aggravation:
  - **Level 1 (erotic posing; no sexual activity):** in small numbers (about 20 or fewer), a fine, probation, or community service may be appropriate; where numbers are large or the depictions are extremely suggestive, **1 to 6 months’ imprisonment**.
  - **Level 2 (sexual activity between children, or solo masturbation by a child):** generally **immediate custody**; up to about **9 months**, depending on numbers.
  - **Level 3 (non‑penetrative sexual activity between adults and children):** about **6 to 12 months’ imprisonment**, depending on numbers.
  - **Level 4 (penetrative adult‑child sexual activity; or sadism/bestiality):** generally **12 to 36 months’ imprisonment**, with custody even for a few images.
- The Court directed that sentencing courts should, where practicable, **view the images** or a representative sample to assess seriousness rather than rely only on descriptions.
- The Court indicated that cases with features comparable to these (or more serious) should generally be prosecuted in the **District Court**, given the Magistrates’ Court’s limited sentencing powers.
- The Court stated that the new guideline ranges should operate **prospectively** (i.e., for offences committed after the judgment), while still indicating that much heavier sentences would be expected under the new approach.

## Legal Principles

- Possession of child pornography under s.3(3) PCPO is a **serious offence**; where the material depicts sexual activity (Levels 2–4), **immediate imprisonment will generally be required**, absent exceptional circumstances.
- Consistency in sentencing is a legitimate appellate objective; where trial‑level outcomes show marked disparity, the Court of Appeal may issue **guideline judgments** setting structured starting points.
- Gravity should be assessed by reference to both the **nature of the depictions** (including whether sexual activity is shown, whether adult‑child sexual activity is involved, and whether penetrative acts or sadism appear) and the **number of images** possessed.
- Aggravating factors include (among others): a **previous record** for similar or child‑related sexual offending; **very young children** in the images; **intent to distribute, publish, or disseminate** (commercially or otherwise); and a large collection.
- Mitigation follows ordinary principles, including sentence reduction for a **timely guilty plea**, and personal circumstances such as youth where justified, but mitigation does not displace the general expectation of custody for higher‑level material.
- Where a guideline judgment marks a significant upward shift from earlier practice, fairness may require **prospective application**, particularly in sentence‑review proceedings.
- The statutory purpose of the PCPO, informed by Hong Kong’s obligations under the **UN Convention on the Rights of the Child (Article 34)**, supports treating child‑pornography offences as conduct that causes harm beyond the individual possessor by sustaining sexual exploitation.

## Conclusion

In *Secretary for Justice v. Man Kwong Choi*, the Hong Kong Court of Appeal found that two magistrates’ sentences for possessing hundreds of child‑pornographic images were manifestly inadequate, but left them unchanged because they reflected prior inconsistent practice; the Court then set prospective, level‑based sentencing guidelines that generally require immediate custody once the images involve sexual activity and directed more serious cases to courts with adequate sentencing powers.


Secretary for Justice v. Man Kwong Choi, [2008] HKEC 1172 (2008)