HONG KONG

Title:

HKSAR v. Chow Yuen Fai

Court:

Hong Kong Court of Appeal

Date:

December 8, 2009

CRC Provisions:

Article 34: Sexual exploitation

Domestic Provisions:

Crimes Ordinance (Section 118C: offence of homosexual buggery with or by a man under 21; Section 122: offence of indecent assault)

Prevention of Child Pornography Ordinance (Section 3: offences relating to child pornography).

Case Summary:

Background:

The Government prosecuted a man on charges of homosexual buggery with two boys under 21, indecent assault, and the making and possession of child pornography. The defendant pleaded guilty and was sentenced to 11 years' imprisonment. He applied to the Court for permission to appeal against the sentence.

Issue and resolution:

Sexual exploitation. Given the nature and severity of the offences, the Court upheld the original sentence.

Court reasoning:

The Court considered these factors particularly relevant: (a) the youth of the victims (all were 13 or under at the time of the offence); (b) the trauma, distress and psychological harm to the victims and their families; (c) the fact that pictures and videos were taken during some of the incidents; (d) the non-use of condoms in the buggery offences; (e) the risk of the defendant re-offending.

Excerpts citing CRC and other relevant human rights instruments:

26. Little needs to be said about the first consideration. It encompasses a standard and important principle of sentencing, and is self-explanatory. We do, however, wish to make some observations on the second and third considerations:-

…

(2) In Man Kwong Choi, the court, in looking at the offence of possession of child pornography under the PCPO, referred to Article 34 of the United Nations Convention on the Rights of the Child, which applies to Hong Kong (see paragraph 11). That Article states: -

“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;

Notes:

CRIN's summary of the case cited in support of this decision by the Court, Secretary of Justice v. Man Wok Choi [2008] 5 HKLRD 519], is available at http://www.crin.org/Law/instrument.asp?InstID=1509.

CRIN Comments:

CRIN believes this decision is consistent with the CRC in that the sexual abuse and exploitation of children 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:

[2009] HKCA 391; [2010] 1 HKLRD 354

Link to Full Judgment:

http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkca/2009/391.html?stem=&synonyms=&query=chow%20yuen%20fai&nocontext=1

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.