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IV. The Prevention of Child Pornography Ordinance

Article 34 of the Convention requires that children should be protected from all forms of sexual exploitation and sexual abuse. As a consequence Hong Kong enacted the Prevention of Child Pornography Ordinance (PCPO), Cap. 579 , which came into operation on 19 December 2002. The PCPO prohibits child pornography, pornographic performances by children and child sex tourism. It strengthens the protection of children by criminalizing the printing, making, producing, reproducing, copying, importing, exporting, publishing, possessing and advertising of child pornography.

A. Definitions

Section 2 of the PCPO defines child pornography as:

“(a) a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child, whether it is made or generated by electronic or any other means, whether or not it is a depiction of a real person and whether or not it has been modified; or

(b) anything that incorporates a photograph, film, image or depiction referred to in paragraph (a),

and includes data stored in a form that is capable of conversion into a photograph, film, image or depiction referred to in paragraph (a) and anything containing such data.”

Pornographic depiction is defined as:

“(a) a visual depiction that depicts a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or

(b) a visual depiction that depicts, in a sexual manner or context, the genitals or anal region of a person or the breast of a female person,

but, for the avoidance of doubt, a depiction for a genuine family purpose does not, merely because it depicts any part of the body referred to in paragraph (b), fall within that paragraph .”

B. Offences

The PCPO prohibits the production, possession and publication of child pornography. The Crimes Ordinance has been amended in accordance with the new PCPO to prohibit the use, procurement or offer of persons under the age of 18 for making pornography or for live pornographic performances. It also extends the application of certain sexual offence provisions of the Crimes Ordinance to acts committed against children outside Hong Kong, and prohibits the making of arrangements relating to the commission of those acts and the advertisement of such arrangements.

Section 3 of the PCPO crates a number of offences:

(1) Any person who prints, makes, produces, reproduces, copies, imports or exports any child pornography commits an offence and is liable—
(a) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

(2) Any person who publishes any child pornography commits an offence and is liable—
(a) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

(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—
(a) on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years; or
(b) on summary conviction to a fine of $500,000 and to imprisonment for 2 years.

(4) Any person who publishes or causes to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes, or intends to publish any child pornography commits an offence and is liable—
(a) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

C. Defences

There are a number of possible defences under section 4 of the PCPO . They range from the defendant showing that the alleged pornography has artistic merit, or that possession was for a genuine educational, scientific or medical purpose, to the defendant’ showing that he/she believed that the person pornographically depicted was not a child when originally depicted and the person was not depicted as a child. The burden of establishing the section 4 defences is upon the defendant.

D. Sentencing

The Court of Appeal laid down sentencing guidelines for possession of child pornography in Secretary for Justice v Man Kwong Choi and Secretary for Justice v Ho Yan Kiu .

Whilst the court was only concerned with  possession of child pornography contrary to section 3(3) of the PCPO , the court noted that the PCPO created four categories of offences relating to child pornography: (a) printing, making production, reproduction, copying, import and export ( sections 3(1) ), (b) publication ( sections 3(2) ), (c) possession( section 3(3) )  and (d) publication or causing to be published any advertisement that conveys or is likely to be understood as conveying the message that a person has published, publishes or intends to publish child pornography ( section 3(4) ).

The Court alsonoted, per Hon Ma CJHC, that the roots of the PCPO lay in Article 34 of the Convention. As States Parties to the Convention undertook to protect the child from all forms of sexual exploitation the main purpose of sentencing would be deterrence. Therefore, sentencing should take account of the victims of child pornography and the interests of society generally. Deterrence is particularly significant when sentencing for possession of child pornography.

His Lordship stated in the judgment that “The harm to children cannot be stressed enough. For the children depicted in child pornography, they are degraded, dehumanized, traumatized and lose all semblance of dignity. For other children, the prevalence of child pornography only encourages paedophiles and their activities. One of the many dangers is that vulnerable children may regard the type of sexual conduct seen in child pornography as being in some way normal, or worse still, expected of them. Many of the victims grow up mentally scarred. There may sometimes even be evidence of physical injury to the private parts of children.”

The court laid down guidelines for conviction after a trial for the possession of child pornography involving real children as: -

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

The Court considered 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.

Whilst accepting that these guidelines might be seen as harsh, the court stressed they needed to be as the main consideration was the protection of vulnerable children. Custodial sentences should be the norm for first offenders except in the most unusual circumstances,

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