Court of Appeals, Secretary for Justice v. Man Kwong Choi, 16 July 2008, [2008] 5 HKLRD 519

Basic Law of the Hong Kong Special Administrative Region

Article 39

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and international labour Conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

Hong Kong
Child labour
Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:

Ratified treaties1 

Possession of child pornography/ Court competence/ Sentence inadequacy/ Reference to international law to strengthen a decision based on domestic law

The Secretary for Justice applied for a review of sentences imposed by a magistrate’s court for possession of child pornography in violation of the Prevention of Child Pornography Ordinance (PCPO). He recalled that this ordinance was drafted on the basis of the UN Convention on the Rights of the Child:

“As can be seen from the debates in the Legislative Council preceding the introduction of the PCPO, its roots lie in Article 34 of the United Nations Convention on the Rights of the Child (which applies to Hong Kong) protecting children against all forms of sexual exploitation and abuse.”2

In turn, the Court, strengthening its decision on the basis of international law, noted that the defendants’ sentences were “manifestly inadequate”. It thus recommended that prosecution of cases involving similar facts should take place in the District Court, and not the Magistrates’ Court where the maximum permitted sentence is two years. In particular, it specified that possession of child pornography should generally warrant imprisonment and provided sentencing guidelines which classified child pornography offences and set appropriate sentences for each level, including mitigating and aggravating factors. 

1 Convention on the Rights of the Child, 1989.

2 Para. 11 of the decision.

Full text of the decision