Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
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The Hong Kong Court of Appeal upheld the decision of the trial court convicting Chan Hoi Tat of child pornography for soliciting naked photos from a 12 year old girl he met on the internet. He had appealed on the ground that there was lack of sufficient evidence to corroborate the testimony of the complainant. However, the Court of Appeal rejected this ground as the complainant was a credible witness and provided detailed and convincing testimony that she had been a victim of grooming. The Court additionally held that the imprisonment of five years was not excessive in nature as child grooming, which is a global concern, lures children into child-trafficking, child prostitution, and child pornography which must be deterred.
The appellant, Chan Hoi Tat was convicted of grooming and child pornography by the District Court and sentenced to five years imprisonment by the trial court.
The complainant, Miss X, had alleged that between 2003 and 2005 she was subjected to indecent assault and criminal intimidation by the appellant.
In 2003, the complainant was a naive 12 years old when she had come across the appellant on the internet and started chatting with him with no intention of meeting him. However, the appellant who was a 24 year old man repeatedly asked her for naked photographs of herself – one without her face and one with it.
In 2004, when the complainant was in her first year of secondary education, the appellant requested a meeting. When she refused, he threatened to send the two photographs to media outlets and post them on the internet. As a result of these threats, she agreed to meet him. The appellant indecently assaulted her by undressing her and forcing her to masturbate and perform oral sex. He took 10 photographs of the complainant after instructing her to lie naked on bed and then kissed her body including her “lower parts”.
In 2005, the appellant requested the complainant to meet again and when she refused he threatened again that he would publish her photographs on the internet and would send them to her father at his office. On August 5 2005 the appellant took her to a hotel, Emerald House, and indecently assaulted her.
These allegations were established in the trial court and consequently the appellant was convicted and sentenced to imprisonment. He sought to set aside the convictions and the sentence in the Court of Appeal.
Hon. Barnes J. delivered the ruling of the Court.
The appellant advanced eight grounds of appeal, four of which were centred on the evidence of the complainant, three on the evidence of defence witness and the last ground was that the convictions were unsafe or unsatisfactory.
The Court proceeded to analyse the first four grounds. In these grounds, the appellant had complained that the learned judge in the trial court had acted on unsupported evidence of the complainant which caused prejudice to the appellant. [para. 14]
The appellant demonstrated that the evidence given by the complainant was unsatisfactory as it was not supported by any independent evidence, as no photographs of the complainant were found in his possession or custody. [para. 17]
The next three grounds were centred on the evidence of the defence witness and the appellant argued that the witness’s alibi evidence sufficiently cast doubt on the evidence of the complainant with respect to the alleged incident of indecent assault which took place in Emerald House. [para. 18]
The Court observed that all these matters were also put before the trial judge and the fundamental issue for determination was the credibility of the complainant as her evidence was unsupported by any other independent evidence.
The trial judge had observed that the complainant was a credible witness. She impressively gave compelling and detailed evidence of the unpleasant and distressing events which had occurred to her. [para. 21]
The Court of Appeal concluded on the basis of the trial judge’s finding that it was probable that the complainant aged 13 would comply with the demand of sending a naked photograph or feel intimidated when he threatened to publish these photographs and consequently agree to meet him where she was subsequently assaulted. [para. 24]
Moreover, no prejudice was done to the appellant because of the differences or inconsistencies in the complainant’s testimony as the complainant had adequately narrated the incidents which happened to her when she was between 12 to 14 years of age. [para. 26]
The Court then proceeded to analyse the alibi evidence of the appellant’s brother-in-law. The brother-in-law of the appellant gave evidence on August 5 2005 that he went to the Buddhist hospital in Wong Tai Sin to visit his maternal grandfather. When he arrived at 12:30 PM, his sister, who was the appellant’s girlfriend was already present with the appellant and they did not leave the hospital until it was 2 PM. [para. 32]
This evidence would have cast doubt on the assault alleged by the complainant which took place between 12 noon and 3 PM at Hotel Emerald. However, placing reliance on the observations of the trial judge, the Court observed that the evidence of the brother-in-law was not true. [para. 33]
The reasoning given by the trial judge for disregarding his evidence was that the evidence was given after the complainant’s cross-examination which had established that the assault took place on August 5 2005 between 12 noon and 3 PM. Further, no proper explanation was rendered for the lateness of application. In the absence of this explanation, the alibi evidence was not found credible. [para. 34]
The Court emphasized that the trial judge was confident that Miss X’s testimony was credible and she had been the subject of a gross indecent assault at the hands of the defendant between 12 noon and 3 PM. This statement conveyed that the complainant’s evidence was accepted and the alibi evidence was not persuasive. [para. 38]
The only ground of appeal which was allowed was that the five year sentence was “manifestly excessive”. It was highlighted that the appellant had an “excellent background” as he was working as a sales manager in a big motor company, was a filial son, a caring husband and the major breadwinner of the family. [para. 43]
The Court, disregarding his excellent background, observed that the evidence clearly pointed at the offence of grooming a 12 year old girl. Grooming is a serious offence and it is easy for an older man to prey on an innocent child, especially on the internet. It relied on the case of Secretary for Justice v. Chung Yui Hung,  2 HKLRD 771 in which it was observed that “the internet is available for all sorts of innocent, valuable and educational purposes. However, its misuse by older men to seek and find and then groom girls who were vulnerable and immature, should be deterred.” [para. 46]
Therefore, in the present case, repeated acts of indecent assault and threatening the vulnerable complainant constituted aggravating features which justified the five-year imprisonment for the appellant.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Technically the decision contracts freedom of expression, but the restriction was legitimate as the Court of Appeal affirmed the trial court’s decision of strictly penalizing the offence of grooming a child. This decision was made in consonance with the observation that internet is misused by older men for sexual gratification especially in terms of abusing children who are vulnerable and naive. In this case, the appellant befriended a 12 year old girl on the internet, then coerced her into sending him naked photographs of herself, and threatened to expose her indiscretion if she refused to meet him, which ultimately lead to her assault. It is representative of a global concern where children are lured into child pornography and child trafficking.
Grooming is an issue which society and law have to tackle together as sexual predators often use their age and maturity to develop trust and exploit the natural curiosities of children. In the present case, the Court of Appeal’s decision to grant a five year imprisonment for the aggravating activities of the applicant should serve as a deterrent from indulging in grooming.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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