SINGAPORE: A German businessman who was given 12 weeks' jail for possessing child pornography has failed in his attempt to have his jail term reduced to a fine or to have the charges "deleted", after new evidence showed that the number of films was smaller than the prosecution originally indicated.
A high court judge on Wednesday (Jan 20) upheld the jail term meted out by a lower court on Michael Frank Hartung, a 50-year-old former senior executive at Deutsche Bank.
He had pleaded guilty in the State Courts to two charges of possessing obscene films, with another two charges taken into consideration, and was given 12 weeks' jail in July last year.
This was on top of his jail term of about five-and-a-half years for providing information for the facilitation of commercial child sex tourism overseas, which he had contested in a trial.
On Wednesday, the prosecution asked the court to amend Hartung's pornography charges, citing further evidence that reduces the number of obscene films. The evidence was uncovered after an investigation officer was tasked to conduct further examination of the films for the appeal.
Hartung was convicted of possessing 225 DVDs in August 2016 that contained 225 obscene films, and of possessing 20 obscene films in a Samsung phone. However, new evidence showed that the figures should be 216 and 15 respectively instead.
Of the 225 films, eight could no longer be played so it could not be confirmed that they contained obscenity. One DVD contained a slideshow of obscene pictures instead of a film.
Of the 20 films in Hartung's phone, one was a hidden file created by the phone's operating system, while another four were created when the laptop's operating system was in use to store data temporarily, so Hartung might not have been aware that these five obscene films were in his possession.
Deputy Public Prosecutor Chua Ying-Hong asked the court to amend the charges and convict Hartung on the amended charges instead. The judge granted this, after Hartung said he did not object.
Ms Chua said 12 weeks' jail is already at the lowest end of the sentencing band, with "no scope for any lower sentence". She added that the child abuse material here includes penetrative sex and BDSM involving children as young as four.
"In total, the appellant possessed more than 13 hours of child abuse material," said Ms Chua, adding that Hartung not only possessed the material but imported them into Singapore when he came here from Germany years ago.
HARTUNG POINTS OUT "ERRORS THAT WERE DONE BY THE PROSECUTION"
Hartung was unrepresented and made his arguments from a grey room in prison, appearing visibly slimmer. He said he had pleaded guilty according to the original charges and had "no freedom to choose the words of pleading guilty" as they were chosen by the prosecution and the court.
"The appeal itself has not much to do with the 'plead guilty' but it is ... pointing out the kind of errors that were done by the prosecution," he said.
Referring to himself in third-person, Hartung said: "The concern the appellant has is that this investigation was done after the case was closed, so without this kind of effort and motions by the appellant to freeze all the evidence for future review, there would have been unlikely any kind of review and the case would be closed and judged on false statements presented by the prosecution."
He charged that the prosecution did not know its case, and had "a lot of time, a lot of means to get their facts right and they didn't".
He also made long arguments on "morality", saying that he saw the issue with the abuse of children and child pornography.
"When talking to morality, we have to consider the ethical standard of the prosecution itself who are lying, presenting false evidence in court and misguiding judges," he said.
READ: German businessman gets jail for promoting overseas child sex tours to undercover Singapore police
He said there was a need to protect human rights, adding: "If the prosecution will be so keen on really protecting the victims, then we need to ask why Singapore does not sign (a) human rights charter, why Singapore supports a maid system with benefits to foreign workers' levies, which leaves a lot of women, single mothers, away from their children which (contributes) more to child abuse than the appellant has done?"
He asked why "all these material" could be seen online and called the prosecution "hypocrites" for not taking actions they could have.
He asked to have the charges "deleted" and claimed the police had mishandled the evidence, which they had been reviewing since 2016, adding that he has "no intention to harm anyone in this society or disturb any peace".
Justice Vincent Hoong dismissed Hartung's attempt to challenge his conviction, as well as his submission for a fine instead of 12 weeks' jail.
"I am unable to agree and I do not find 12 weeks' jail ... to be manifestly excessive," he said.
"The argument that the DVDs in question were commercially available in most other countries is a non-starter," said the judge, adding that this does not reduce Hartung's culpability in the eyes of Singapore's law.
He said that the degree of obscenity in the films portrays the need to deter importation of them and that the films were in fact "appalling".
"The sentence imposed is already, in my view, on the lower end of the spectrum," said Justice Hoong.
For each charge of possessing obscene films, Hartung could have been jailed for up to six months, fined at least S$500 per film up to a total cap of S$20,000 or both.