HKSAR v. LEUNG CHI KEUNG

CACC 373/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 373 OF 2015

(ON APPEAL FROM DCCC NO. 97 OF 2015)

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J U D G M E N T

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Introduction

1.  The applicant was convicted after trial by HH Judge Dufton (“the judge”) in the District Court on 25 September 2015 of one charge of possession of child pornography, namely 10 video films and 4 still films being stored in a computer hard disk, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579.  He was acquitted of a separate charge of possession of apparatus for radiocommunications without a licence, contrary to section 8(1)(b) and section 20(a) of the Telecommunications Ordinance, Cap 106.  On 15 October 2015, the applicant was sentenced to 14 months’ imprisonment on the charge of possession of child pornography.  On 27 October 2015, he applied for leave to appeal against both his conviction and sentence.

2.  On 25 April 2016, the applicant abandoned his application for leave to appeal against sentence.  This judgment is concerned, therefore, only with the question of leave to appeal against conviction for a single charge of possession of child pornography.

The trial

3.  There was no dispute that the child pornography as particularised in the charge, of which ten files were classified as Level 4 child pornography and four as Level 2, were found in the hard disk of a computer (Exh P1), which was in the ownership and possession of the applicant on the day it was seized by police officers from the applicant’s bedroom, namely 29 January 2014.

The prosecution case

4.  It was recognised from the outset that the issue in the case was the applicant’s knowledge of the material on his computer.

5.  The prosecution invited the judge to infer knowledge from the circumstances of the finding of the computer, from the admission made by the applicant that he owned and possessed the computer on the material day, and from the evidence of DSPC 23344, an expert on computer forensic examination.  The expertise of DSPC 23344 was not disputed and the judge was satisfied that the witness was able to give evidence as an expert.[1]

6.  The evidence of DSPC 23344 comprised his oral evidence as well as three written statements, which were adopted as part of his evidence-in-chief, pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221 (Exh’s P10, P11 & P12).  He dealt with the examination of the hard disk of the computer concerned by the forensic programme “Encase”, the finding of the child pornography (video files and photo files)[2], the subject of the charge, and the shortcut files linked to the video files[3] (“the shortcuts”), as well as the “restoring” of the hard disk contents of the computer to an external hard disk (Exh P5), which became a complete and accurate clone of Exh P1.[4]  It was an admitted fact that 14 images were extracted from the hard disk by PC 4384, which were contained in an album and produced as Exh P6.[5]

Location and “last access” to the child pornography

7.  Child pornography videos and photographs[6] found by DSPC 23344 in the computer (Exh P1) were listed in a tabulated summary (Exh P13)[7]; the computer path to the child pornography videos and photographs being Users – user – downloads – Foxy – download in C drive.

8.  The shortcuts found were created and had appeared in the RealPlayer programme (“RealPlayer”) File menu and/or Window Start menu[8]; the correlation of these shortcut files with the video files was summarised in an agreed table (Exh P14).[9]

9.  For access to the videos and photo files, DSPC 23344 explained in his statement[10] that the Last Accessed Timestamp in the computer (Exh P1) was disabled, which meant that “at any time the file is opened the Last Access date will not make any change”.[11]  The last access time of the video files[12] shown may not therefore be the last time the files were viewed.

10.  However, the disabling of the Last Accessed Timestamp did not affect the last access time of the shortcut files.  When a user took a shortcut link to a file, the last access stamp for that shortcut file would change, without changing the last access time for the original file.  The true last access time would therefore be shown by that of the shortcut link file.[13]

11.  It could be established that the files were mostly created in September 2008 or October 2008, save for one created in July 2009.  The last access times were mostly on the same day that they were created or the following day, with one or two exceptions; for example, there was a file which had last been accessed a month after creation.

12.  The evidence of last access, in the form of the presence of shortcut files created at various times between September 2008 and April 2013, showed that the files had been opened by RealPlayer and/or other video playing programmes.  The last access times of the shortcut files were between June 2012 and April 2013.

13.  I have summarised this evidence in the following table:

Item No.	in Annex  A to    Exhibit:	Type	File Created	Last Access/Written	Shortcut  (S/C) (Annex B    to P11)[14]	S/C(s)   in[15]	Last Access  via S/C[16]	P6[17]Image No.	Level[18]
Video Files
2	P10	3gp	08-09-27	08-09-28	No.1	Real+WSM	12-06-01	13	2
3	P10	3gp	08-09-27	08-09-27	No.4	Real+WSM	12-06-01	8	4
6	P10	3gp	08-09-27	08-09-27	No.7	Real+WSM	12-11-26	7	4
7	P10	3gp	08-09-27	08-10-29	No.2	Real+WSM	12-06-01	9	4
9	P10	mpg	08-09-28	08-09-28	No.5	Real+WSM	13-04-24	10	4
10	P10	rmvb	08-09-28	08-09-28	--	N/A	N/A	5	4
11	P10	wmv	09-07-28	09-07-28	No.9	WSM	12-11-28	14	4
1	P11	rmvb	08-09-27	08-09-27	No.8	WSM	13-04-24	6	4
2	P11	3gp	08-10-13	08-10-13	No.10	Real+WSM	12-06-01	11	4
3	P11	3gp	08-10-13	08-10-29	--	N/A	N/A	12	2
Photo Files
13	P10	jpg	08-09-13	08-09-13	--	N/A	N/A	1	2
15	P10	jpg	08-09-28	08-09-28	--	N/A	N/A	3	4
16	P10	jpg	08-09-28	08-09-28	--	N/A	N/A	4	4
20	P10	jpg	08-09-27	08-09-27	--	N/A	N/A	2	2

Ways of Access to the child pornography

14.  In his submissions before me, Mr Nicholas Wong, for the respondent, suggested that there were at least five methods of accessing the material concerned.  At trial, DSPC 23344 demonstrated the accessing of the files from the full path C\Users\user\Downloads\Foxy\Download (the “Download” folder), and the shortcut files from the path C\Users\user\AppData\Roaming\Microsoft\Windows\Recent.

15.  All of the suspected child pornography could be seen in the “Download” folder under the “Foxy” folder, among a list of 181 files.  DSPC 23344 believed that they had been downloaded through the Foxy Application.  In the folder “Recent”, there were 150 files, including the shortcuts linked to the child pornography files.

16.  In the demonstration in court, access of the files using shortcuts was done by clicking the start menu on the simulation of the computer’s user home screen (“Start Menu”), and then “Document”, which opened up the box (“the Box”) showing the names given to the shortcut files, including the name of the child pornography files.[19]

17.  Access to the files could be from the full path through file manager under the Start Menu; and the alternative way was by accessing the “user” folder either through Start Menu by clicking “user” on the top line of the Box[20], or by the “user” icon on the home screen page.[21]

18.  It was also possible to access the files through the RealPlayer programme.  After opening the RealPlayer from the Start Menu, by clicking “File(F)”, a box with shortcut files was then displayed[22]; one of them was a suspected child pornography video.

19.  Those videos, which were not amongst the displayed shortcut files, were accessed by clicking “Open(O)” or Ctrl+O at the top of the said box; the “Download” folder was then reached.[23]

20.  DSPC 23344 disagreed with defence counsel at trial that a file could be opened and a shortcut created without the video being played.  The witness then demonstrated the playing of a video at the request of the judge.  It was thereby demonstrated that after the video was played, shortcuts to the played video file had been automatically created and they replaced the shortcuts as displayed in paragraphs 15 and 17[24] (supra); since the number of shortcuts that could be shown in the Box was limited.[25]

21.  It was confirmed in evidence that the files could also be opened and viewed directly from the Foxy application (“Foxy”).

Downloading files using Foxy

22.  As discussed above, all of the files concerned were found in the “Download” folder of Foxy and were believed to be downloaded through the said application.  DSPC 23344 explained that Foxy was a “peer to peer” file sharing application: files would not be downloaded automatically by Foxy; a user had to make a choice as to what file was to be downloaded from a list of file names displayed by the search engine which hit the keyword search.[26]

23.  DSPC 23344 confirmed that there was no record of search for child pornography in the search history of Foxy; and he said the search history could be cleared by clicking on the last line of the search history.[27] He disagreed that the video file could be played at the same time as the file was being downloaded.

The defence case

24.  The defence case was that the applicant was not aware that the child pornography was in his computer; and he believed that there was a virus on the computer causing the child pornography to be downloaded.  It was also contended that the applicant was not in exclusive control of the computer in question, suggesting that the child pornography could have been downloaded by other users without the knowledge of the applicant.

Availability of the computer

25.  The applicant testified that he had purchased the computer in question 8 to 9 years previously for his own use and that of his family members.  He lived with his parents and younger sister. Until 2014, his sister’s boyfriend “Billy” would sometimes stay overnight at his home. The computer was initially placed in the living room for everyone to use; it was connected to a router, which was connected to a modem in his sister’s bedroom.

26.  The applicant stressed that anybody who came to his home could use or play on the computer; no specific user account had been created, and no password was required to use the computer.  He explained that he was employed as a tour guide and, between 2005 and 2013, he would spend about one week every month in Hong Kong, during which time he would seldom use the computer.  He recalled one occasion between 2008 and 2009 when he had seen Billy playing on the computer in question.[28]

27.  In about 2013, the computer was out of order and, without consulting his family members, he placed it in his own bedroom without any wires or cables attached.  He did not throw it away because he had some photographs and information on the computer from his previous tours.[29]

Video viewing on the computer

28.  It was the applicant’s evidence that he rarely used windows shortcuts to look for videos, and he never used RealPlayer.  He said that RealPlayer would automatically pop up when he experienced problems with the computer.[30]  He used the programme WinAmp to play videos.[31]

29.  He also testified that he used Foxy to view videos from the internet.  He would open the video directly from the download section of the software after the file was downloaded.[32]  The files shown in the section were music files.[33]

30.  The applicant denied he had browsed any file from “View downloaded folders”.  When asked how he viewed videos (the box showing only music files), the applicant replied that initially there were MTV video files shown in the box but he did not know why they were no longer there.[34]  He would do a fresh search if he wanted to play a video again as he did not know how to click the other buttons.[35]

Malfunctioning and virus

31.  The applicant described the computer variously as “breaking down; lost control, not working properly and malfunctioning”[36]; sometimes family members also told him that they had “lost control” of the computer.[37] He believed it had contracted a virus; accordingly, he bought an anti-virus programme NOD 32[38] and installed it on the computer in around 2009.  The NOD 32 did not solve the problem.

32.  It was submitted on the applicant’s behalf at trial that the court could not rule out the possibility that the child pornography files were downloaded by a virus.[39]

Reasons for verdict

33.  The judge described the burden upon the prosecution in the following way[40]:

“…This involves the prosecution proving that the [applicant] had control of and knowledge of the existence of the video files and photo files on the computer but not that the [applicant] knew they were child pornography (see HKSAR v Justin Yves Herbonnet[41]; Atkins v DPP[42]and McMurdo v HM Advocate[43]).”

34.  He rejected the applicant’s evidence that RealPlayer was not functioning[44]:

“I have no hesitation in rejecting the [applicant’s] evidence that RealPlayer was not working. As already described DSPC 23344 demonstrated in court the playing of one child pornography video by RealPlayer.[45] If the demonstration given by DSPC 23344 is repeated nine of the ten child pornography video files can be played on RealPlayer. Further as can be seen from Annex B to the second statement of DSPC 23344[46], the video files were last accessed on RealPlayer in 2008, 2012 and 2013, showing that RealPlayer had been working for that period of time.”

35.  He further found that, since the “View Download Folders” was on the same page as the download icon which the applicant accessed to make a search, it was not credible that the applicant would do a fresh search if he wanted to play a video again because he did not know how to click the other buttons.[47]

36.  The judge found it inherently improbable that the parents would have downloaded child pornography on a computer used by their children, or that Billy would have downloaded such material on a computer used by his girlfriend.  He held:

“On this evidence the father cannot have been responsible for downloading the child pornography in 2008 and 2009. Further I find inherently improbable that if the parents used the computer they would download child pornography on the computer used by their son, let alone leave the child pornography on the computer. Equally I find inherently improbable that if the children used the same computer as their parents, they would download child pornography on the computer, let alone leave the child pornography on the computer for their parents to see. I reject that the parents downloaded the child pornography.

Similarly I find inherently improbable that if the boyfriend used the computer he would download child pornography on the computer used by his girlfriend. I reject the boyfriend downloaded the child pornography. I reject a visitor to the flat used the computer and secretly downloaded child pornography without anyone knowing.”[48]

37.  Further, the judge ruled that it was speculation that the computer was infected with a virus and had downloaded child pornography automatically.[49]

38.  The judge further rejected the suggestion that the computer had become out of control since April 2013, as the simulation had worked in court and two child pornography files had been viewed in April 2013:

“The fact the computer was not turned on and was not connected to any cable or equipment when seized from the [applicant’s] bedroom is consistent with the [applicant’s] evidence that he experienced problems with the computer, which led to him no longer using the computer. Nevertheless I have no hesitation in rejecting the defendant’s evidence that by April 2013 the computer was out of control and that when he last used the computer in the winter prior to April 2013, he could not access the user home screen/desktop. I do not find this evidence credible.

Although in answer to the court DSPC 23344 said that he did not check whether the computer was working DSPC 23344 was able to demonstrate from the simulation of the computer that the computer was working. Further all the child pornography files, which had been created in 2008 and 2009, had last been viewed between 2008 and 2013. Two were last viewed in 2008; three in June 2012; two in November 2012 and two in April 2013.”[50]

39.  In conclusion, the judge found he was satisfied so that he was sure that the prosecution had proved that the applicant was in possession of the child pornography.

Grounds of appeal

40.  Mr Henry Hui, counsel for the applicant in this application for leave (but not in the court below), has submitted the following grounds of appeal against conviction:

(a)  The judge was wrong to find, as the only reasonable inference, that the applicant knew of the existence of the child pornography on the computer [Ground 1];

(b)  The judge did not consider whether the applicant knew of the continued existence of the child pornography as at the date of the charge [Ground 2];

(c)  The judge did not properly consider whether the applicant had custody and control of the child pornography [Ground 3]; and

(d)  The judge was wrong to reject the applicant’s evidence [Ground 4].

A final catch-all ground of appeal avers that the conviction was in all the circumstances unsafe and unsatisfactory [Ground 5].

Ground 1

41.  In support of Ground 1, Mr Hui referred to the case of Atkins v DPP[51]for the proposition that the prosecution should prove beyond reasonable doubt that the applicant had knowledge of the existence of the child pornography in order to prove possession.  The prosecution had invited the judge to infer knowledge from the finding of the computer, and the admission that the applicant owned and possessed it on 29 January 2014.  However, the prosecution did not adduce direct evidence to prove that the applicant had actually used Foxy and RealPlayer or had noticed the existence of the child pornography when he used it.

42.  The judge had ruled that it was the only inference to draw that the applicant knew of the existence of child pornography, since the child pornography files were easily accessible and viewed from RealPlayer and Foxy.  Mr Hui referred to the oft-quoted principle in Winnie Lo v HKSAR[52]that the inference drawn must be grounded on clear findings of fact; it must be a logical consequence of those facts; and it must be the only inference that can reasonably be drawn on the basis of those facts.

43.  Mr Hui submitted that the inference that the applicant knew the existence of child pornography was not a logical one and he contended that it was doubtful whether the evidence was sufficient to support such an inference.  He stressed that the computer was accessible by other family members and Billy, that the applicant spent no more than one week every month in Hong Kong, that the computer was not password protected, and that the police did not examine or exclude the possibility of remote access and hacking.  He argued that there were other reasonable inferences available; for example, that the child pornography could have been downloaded and viewed by other persons without the applicant’s knowledge.

44.  In relation to the case of HKSAR v Justin Yves Herbonnet[53], which supported the proposition that the mere fact that others may have had access to the computer did not prevent the drawing of an inference that an accused knew of the existence of child pornography, Mr Hui submitted that a strong prima facie case was held to exist in Herbonnet[54]; whereas the facts of the present case were much weaker.

Ground 2

45.  In respect of this ground of appeal, Mr Hui pointed out that the evidence established that the child pornography was found in the hard disk of a disconnected computer which, when seized, was not connected to any cable or equipment.  Accordingly, he submitted that the prosecution had failed to adduce any evidence to prove that the applicant knew that the child pornography had continued to exist in the computer by the date in the charge; furthermore, the judge did not address this issue.

46.  Counsel contended that the applicant’s testimony that he did not throw the computer away because he had some photographs and information in it from his previous work suggested that he may have believed that the contents of the computer were no longer in existence but that future technology might be able to restore them.  It did not remove any doubts raised as to the continued existence of any child pornography in the computer.

Ground 3

47.  Mr Hui submitted that, in accordance with the principle in R v Porter[55], if the applicant could not retrieve or gain access to the contents of the computer, then the contents were beyond his reach and he could no longer be said to have custody or control of them.  Accordingly, the prosecution had failed to prove that the applicant could retrieve the contents; furthermore, the judge did not consider this matter either.

48.  Thus, there was a reasonable doubt as to his custody and control of the material in question because: (i) the computer had been found by the applicant to be malfunctioning; (ii) it was unplugged and had not been used for several months; (iii) the prosecution did not check whether the desktop was actually working; and (iv) the desktop was not used for the demonstration in court.

Ground 4

49.  The judge was criticised under this ground of appeal for rejecting certain aspects of the applicant’s evidence, namely:

(a)  That the applicant had not used RealPlayer.  It is said that the fact asserted that RealPlayer could be used to open files was not sufficient to justify a rejection of the applicant’s evidence that the applicant had not used it;

(b)  That he did not use Foxy to access files.  It was contended that it was unreasonable to assume that the applicant would necessarily have used every function of Foxy;

(c)  That others might have downloaded child pornography onto the computer.  It was argued that if the judge found it inherently improbable that they might not have downloaded child pornography in case others saw what they had done, the same should apply to the applicant’s alleged downloading of child pornography, which his family members might then have seen; and

(d)  &That the applicant had last used the computer in the winter before April 2013, by which time it was already “out of control”.  It was submitted that the fact that the condition in which the computer was found, switched off and unconnected to any cable or equipment, in fact supported the applicant’s testimony.

50.  Finally, it was argued that (1) the child pornography files were covered by several sub-folders and not easily accessible; (2) no child pornography was found in the applicant’s notebook, suggesting that he did not have the habit of watching such material; and (3) the psychological report indicated that the applicant did not have a psychiatric or paraphilic (that is, an atypical sexual interest) disorder.[56]

Respondent’s submissions

51.  Mr Wong, for the respondent, submitted that the irresistible inference to be drawn from the evidence was that the applicant had knowledge of the existence of the child pornography files, the subject-matter of the charge, in his computer.  He relied on the following primary facts to ground that inference:

(a)  Some of the files had been in the applicant’s computer since 2008, and some since 2009;

(b)  The files had all been viewed (with the last access times ranging between 2008 and 2013);

(c)  The files were all found in the same Foxy download folder[57]; and

(d)  The files could all be accessed via C drive; shortcuts; and directly from RealPlayer and Foxy.  They were all readily accessible and were neither hidden nor did they require specialised equipment or expertise to recover.[58]

Mr Wong further submitted that the names of the child pornography files and images of the files could be seen when accessing them.  It was argued that the files were not, therefore, “beyond the reach of the applicant”.  It was emphasised that the judge had specifically rejected the applicant’s evidence that the computer was “out of control”.  The judge had dealt with the argument that (i) the applicant’s family members and Billy would also use the computer; and (ii) the computer was not connected to any cable or equipment when seized.  The judge then gave reasons as to why he rejected the applicant’s evidence and arguments and why he drew an irresistible inference against the applicant.

52.  It was further submitted that there was no evidence of remote access or hacking of the said computer.  Such a suggestion was mere speculation.

53.  In view of the above, the respondent submitted that the case was stronger than the so-called “strong prima facie case” in Herbonnet, the principles of which should apply to the present appeal.

Ground 2

54.  In relation to Ground 2, Mr Wong submitted that there was no actual evidence that the applicant held a belief that the contents on the computer had somehow ceased to exist. Indeed, his evidence was that he did not throw the computer away because he had some photographs and information on the computer from his previous (working) tours.[59] Further, the computer had last been used on 25 April 2013, i.e. 9 months before its seizure.

Ground 3

55.  In respect of Ground 3, the respondent submitted that no suggestion had been made at trial that the applicant could not retrieve or gain access to the original hard disk at the material time or that it had been unlawfully tampered with.  The defence case had all along been that the child pornography files had been downloaded by others, including his family members, or by a computer virus.  As a result, he had no knowledge of the existence of the files.

Ground 4

56.  Finally, the respondent submitted that the judge had carefully considered the testimony of the witnesses and given cogent reasons as to why he rejected the applicant’s evidence.

Consideration

57.  On the face of it, this might appear to be a technically complex set of facts.  However, much of the technical aspects explored in the trial below are not particularly relevant or germane to this appeal.  For example, it is not disputed, as indeed it was not disputed at the trial, that the files in question were found on the applicant’s computer.  Nor can it be said that these files were not accessible to someone using the computer by a number of different routes.  Nor can it sensibly be challenged that the files were in fact accessed, albeit some months prior to the seizure of the computer.

58.  What was principally in issue at trial, and certainly in this appeal, is how those files got there; whether the applicant could be proved to have known they were there (and still there on the 29 January 2014, the date of the charge); and whether he could be said to be in possession of them in law.  Those issues, albeit to some extent dependant on technical issues of function and access of the computer in question, were questions of fact or inference from the evidence.

59.  It is neither necessary nor wise for me at this stage to go into an elaborate evaluation of the evidence myself: for present purposes, I am only concerned to determine whether there are reasonably arguable grounds of appeal against conviction such that leave to appeal should be granted.

60.  Although Mr Hui, in his concise and helpful submissions, has sought to persuade me that the inference that the applicant must have known about, and been in possession of, the files on his computer was not the only irresistible inference to draw, it seems to me that any other inference would be somewhat fanciful in the circumstances.  Firstly, it was not suggested to DSPC 23344 in evidence that the child pornography found in the Foxy folder was or may have been downloaded by a virus.[60]  In any event, the suggestion was examined by the judge and rejected.[61]  He further held that even if, contrary to his finding, the files had been somehow downloaded by a virus, the question was still whether the applicant was knowingly in possession of child pornography.[62] He held that, even in such circumstances, which he did not accept, the applicant would still be in possession of the files.[63]

61.  Secondly, the computer in question was found in the applicant’s bedroom.  The notion that someone else could, unbeknownst to the applicant, have downloaded the material onto his computer was explored and rejected by the judge.[64] He simply did not accept the theory that anyone else would have downloaded the files in question.  Again, even if he was wrong about that and someone else had downloaded the material, the judge found that, since the files had existed on the computer since 2008 and 2009, the applicant would have been bound to know about them, and to have been in control and possession of them.[65]

62.  Thirdly, the files were readily accessible and it would rather defy belief if the applicant had been the only one not to have accessed them.

63.  In relation to the argument advanced before me that there was no evidence that the computer actually worked on 29 January 2014, I do not accept that this is a valid argument on this appeal, when the trial had proceeded on the basis of an admitted fact that Exh P5 was a clone of the hard disk of Exh P1, and a complete and accurate copy thereof.[66] Moreover, it was not suggested at trial that the applicant could not retrieve or gain access to the original hard disk at the material time or that it had been tampered with.  The applicant’s case was that whatever was on the hard disk was downloaded by someone else, or perhaps the result of some virus.

64.  I am similarly unimpressed by the reasonableness of an argument that the prosecution had somehow failed to prove that the applicant knew the material would still be there on 29 January 2014.  That again was not an issue run at the trial and it did not sit easily with the applicant’s evidence that he did not throw the computer away because he still had some photographs and information on the computer from his previous working tours.[67]

65.  As for the complaints about the rejection of the applicant’s evidence, this is always a difficult ground to mount on appeal where the trial judge has had the advantage of seeing and hearing the witnesses. With respect, I do not see this ground as reasonably arguable where the judge has gone to considerable lengths to explain the reasons for his rejection of the applicant’s evidence.

66.  As for the suggestion that the applicant did not suffer from a psychiatric or paraphilic disorder, such evidence only became available by way of psychiatric and psychological reports prepared for the purposes of sentence and does not, of course, mean that the applicant did not have an unhealthy interest in such material.

Conclusion

67.  In all the circumstances, I do not see any reasonable grounds of appeal against conviction and, accordingly, I refuse leave to appeal.

[1] Appeal Bundle pages 22-23.

[2] P10 paragraph 5 (at Appeal Bundle page 83) and Annexure A-1 & A-2 thereto (at pages 88-89); P11 paragraph 5(ii) & (iii) (at page 92) and Annexure A-1 thereto (at page 100).  The 14 child pornography (10 videos and 4 pictures), the subject of the charge, were amongst the suspected child pornography found as stated in P10 and P11, as listed in paragraph 1 of the 2^nd Further Admitted Facts at Appeal Bundle page 14.

[3] P11 paragraph 5 (iv) & (v), 16 shortcut files linked to 10 video files which were suspected child pornography (some of them were the subject of the charge).

[4] Appeal Bundle pages 11, 23Q-24C and 84.

[5] Appeal Bundle page 11, paragraph 9.

[6] There were 12 videos and 6 photographs of (suspected) child pornography found.

[7] Further Admitted Facts, paragraph 1 at Appeal Bundle page 12; tables in Exh P13 at Appeal Bundle pages 121-122.

[8] Paragraph 5(v) in P11, Appeal Bundle page 92.

[9] Further Admitted Facts paragraph 3 at Appeal Bundle page 13; P14 at Appeal Bundle pages 117-119.

[10] 3^rd statement of DSPC 23344, Exh P12.

[11] Appeal Bundle page 108.

[12] As listed in Annexures A of the 1^st and 2^nd statements of DSPC 23344, Appeal Bundle pages 88-90 and 100.

[13] Appeal Bundle page 211E-I.

[14] The correlation of the shortcut files (S/N in Annex B of P11) with the video files (S/N in Annexes A of P10 and P11) can be found at Appeal Bundle pages 117-119, Exhibit P14.

[15] These short cut files were created and had appeared in: “Real” for RealPlayer programme File menu; and “WSM” for Windows Start menu.  See Paragraph 5(v) in P11, Appeal Bundle page 92.

[16] Appeal Bundle pages 101-104, Annexure B of Exhibit P11.

[17] Photo Album produced by agreement, containing images extracted from the files.

[18] Child Pornography Level.

[19] Appeal Bundle pages 29K-30B.  In the verdict, it was written as “which opens up the box seen in Annex D”, which was Exh P11.  Refer to Appeal Bundle page 106 for English translation of the said Annex D.

[20] The Box appeared by clicking“Document” in the Start Menu, see paragraph 39 in the Reasons for Verdict.

[21] On the top left hand corner as shown on Appeal Bundle page 106 (Annex D), instead of top right hand corner as stated in the Reasons for Verdict.

[22] What was stated in the Reasons for Verdict as “the box seen in the Annex C” actually related to Annexure C of Exh P11.  Refer to Appeal Bundle page 105 for English translation of the said Annexure C.

[23] Appeal Bundle pages 30Q-31J.

[24] Appeal Bundle pages 105 and 106.

[25] Appeal Bundle page 31J-R.

[26] Appeal Bundle page 93 Exhibit P11 paragraph 8 and Appeal Bundle page 209I.

[27] Appeal Bundle page 33B-F.

[28] Appeal Bundle pages 35 and 36J.

[29] Appeal Bundle page 37.

[30] Appeal Bundle page 35G-N.

[31] Appeal Bundle page 36J-L.

[32] Appeal Bundle page 39P-S.

[33] Appeal Bundle page 40F-J.

[34] Appeal Bundle pages 41-42.

[35] Appeal Bundle page 42B-C.

[36] Appeal Bundle page 48O-P.

[37] Appeal Bundle page 50O-P.

[38] Exhibit D5.

[39] Appeal Bundle page 48M-N.

[40] Appeal Bundle page 21F-I.

[41] [2006] 1 HKLRD 862.

[42] [2000] 1 WLR 1427.

[43] [2015] HCJAC 37.

[44] Appeal Bundle page 39H-M.

[45] See Paragraph 44 in the Reasons for Verdict.

[46] Exhibit P11.

[47] Appeal Bundle page 42F-K.

[48] Appeal Bundle page 46B-M.

[49] Appeal Bundle page 52B-C.

[50] Appeal Bundle page 51G-R.

[51] [2001] 1 WLR 1427.

[52] (2012) 15 HKCFAR 16 at para 115.

[53] [2006] 1 HKLRD 862.

[54] ibid. at 866G.

[55] [2006] 1 WLR 2633.

[56] Appeal Bundle page 66 paragraph 5.

[57] There were 181 files in the folder.

[58] There was a concession by the respondent in oral submissions that only two files could be said to be hidden; however, they were not the subject-matter of the charge.

[59] Appeal Bundle page 37 paragraph 63.

[60] Appeal Bundle page 52H-J.

[61] Appeal Bundle pages 52J-53S.

[62] Appeal Bundle pages 53T-54H.

[63] Appeal Bundle page 54C-H.

[64] Appeal Bundle pages 45F-47L.

[65] Appeal Bundle pages 47N-48K.

[66] Admitted Facts Appeal Bundle page 11 para 9.

[67] Appeal Bundle page 37N-O.