HKSAR v. REESE ROBERT MILES DAVID

CACC 37/2022

[2022] HKCA 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 37 OF 2022

(ON APPEAL FROM DCCC NO 936 OF 2020)

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J U D G M E N T

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1.  On 23 February 2022, the applicant was convicted after trial by District Court Judge Dufton (the Judge)  of a single charge of possession of child pornography, namely 4,738 photographs and 931 video clips containing child pornography stored in his desktop computer, contrary to section 3(3)  of the Prevention of Child Pornography Ordinance, Cap 579 (“the Ordinance”). The Judge sentenced the applicant to 3 years and 2 months’ imprisonment.

The application for leave to appeal

2.  On 18 March 2022, an application for leave to appeal against conviction and sentence was filed by the applicant.  He did not set out any grounds of appeal in relation to either application because he had not been able to obtain legal advice.  He merely expressed his wish to apply for bail.  An application for bail was refused on 28 April 2022. 

3.  On 27 April 2022, Mr Andrew Raffell, for the applicant, filed perfected grounds of appeal against conviction.  These grounds of appeal were subsequently replaced by Mr David Boyton, who now represents the applicant.  Mr Boyton filed perfected grounds of appeal against sentence on 2 June 2022 and amended perfected grounds of appeal against conviction on 27 June 2022. 

4.  Mr Boyton advances two grounds of appeal against conviction.  Ground 1 averred that the Judge erred in failing to consider whether the evidence of the two prosecution experts supported or raised the statutory defence that on 22 November 2016 the applicant may not have seen the child pornography on his desktop computer, and may not have known, nor suspected, it to be child pornography.  Ground 2 complained that the Judge went against the weight of the evidence by finding the applicant’s references to pornography in his out-of-court statements meant child pornography, and that he was apologising for the possession of child pornography.

5.  Mr Boyton advances one ground of appeal against sentence.  He complains that the Judge failed to take into account, as a mitigating factor, that the eMule programme, which the applicant used to download pornography, may have supported the applicant’s testimony, albeit rejected, that he did not know of “all” the child pornography files in his desktop computer.

The prosecution case

6.  On the morning of 22 November 2016, the police conducted a search of the applicant’s residence.  They seized from the living room a black desktop computer (“the computer”).  After a preliminary examination they suspected that child pornography had been stored in the computer.  The applicant was arrested and cautioned for possession of child pornography.  In response, he said, “I downloaded the pornography videos but I rarely watched them.  Give me a chance.”[1] Later the same day, in a video recorded interview, the applicant admitted, amongst other things, that the computer belonged to him; that he had downloaded pornographic videos by using a programme called eMule; that he started downloading pornographic videos a few years prior when he had a lot of spare time and was under pressure, stress and depression; that he knew what he had downloaded but did not have much time to watch any of them except for some; and that it was a habit he could not control, which he knew was wrong and was sorry.  He said he had unknowingly downloaded child pornographic videos by using the eMule programme.

7.  It was admitted in evidence at trial that on 22 November 2016, 12,275 photographs and about 2,793 videos were stored in the applicant’s computer which included 4,738 photographs and 931 video clips containing the child pornography particularised in the charge and that all depicted real children under the age of 16 years.

8.  The prosecution case focused on proving that the applicant had accessed and therefore possessed child pornography. 

9.  The prosecution called, amongst other witnesses, two experts, Sgt 34232, Choi Yau-shing (PW8), and WDPC 15499, Kwong Pui-shan (PW9), officers of the Cyber Security and Technology Bureau. PW8 testified as to his findings of the contents of the applicant’s computer, whereas PW9 gave evidence how to search and download a file using the eMule programme.

The expert evidence

10.  There was an issue as to PW8’s analysis of the applicant’s computer.  The Judge noted in his reasons that PW8’s explanation of technical matters was at times not very clear and on occasions he needed to revise his evidence.  As a result, the Judge had to warn himself about relying on his evidence.[2]

11.  PW8 analysed 2,572 pornographic photographs, videos and zip files from the computer to see whether any of the videos had been opened and if there were records of files being downloaded by using the eMule programme.  The computer name was DAVID-PC and the administrator was also David with the path C:\Users\David.[3]  He produced 5 Annexes in respect of his analysis of these files.  He recorded the title of each item in Annex 1 and it is apparent in a significant number of them that they were concerned with preteen pornography.  He sought to show that some of the files had been opened by examining relevant times relating to the individual file, which he set out in Annexes 1 to 3.[4]  The Judge explained the findings of PW8 as follows:[5]

“160. In summary Sgt 34232 found that the 2572 files were stored in E: drive (save for files 2534-2572); the administrator David had opened 69 shortcut LNK files (Annex 2)  and 1545 shortcut files with Windows Media Player (Annex 3); the created time, modified time and access times were inconsistent, denoting some of the files had been opened by the administrator David between 2011 and 19 November 2016; a record of 30 searches for pornographic files by keyword using eMule software were made by administrator David and records of 4227 files were downloaded by administrator David using eMule software.”

12.  Annex 4 was a list of 30 keywords used to search the eMule programme.  PW8 did not know the dates of the searches and whether there was a maximum number of searches that could be shown on the list. By using the search keyword “pthc jap” and “pthc” in the eMule programme, PW8 explained that there were many results from which the user could select video files to download.  The initials “pthc” stood for preteen hardcore.  Annex 5 showed that 4,227 files had been downloaded using the eMule programme.

13.  PW9 demonstrated how to search and download a file using the eMule programme.  She testified that the eMule programme was freely available for downloading on the Internet; it did not automatically download files not selected for downloading; a file had to be downloaded 100% before viewing; files could easily be deleted by moving to the recycle bin and after removal from the recycle bin the file could not be retrieved.  However, she accepted that that there was another method that could be used as a shortcut to select all files, which she had not tested and which could possibly be applied to the eMule programme.

14.  As it transpired, the Judge did not rely on PW8’s analysis as set out in Annexes 1 to 3.  He said:[6]  

“267. Having carefully considered the evidence of Sgt 34232 and WPC 15499 summarised earlier, in particular the testimony of Sgt 34232 that the access time in Annex 1 may be affected in three different ways; Sgt 34232 agreed in cross-examination that from just looking at the access time in Annex 1 it was not possible to tell if any of the files had been opened or viewed by a human being; the playing of a video did not change the modified time and that he was not clear whether the antivirus programme installed on the computer could have accessed the files when scanning for viruses; Annex 2 has no child pornography files[7] and that Sgt 34232 was not clear why in Annex 3 the modified time in most files was later than the access time and that some programme might have opened the jump lists, I do not in reaching my verdict rely on the modified and access times in Annexes 1-3 to show that the defendant had viewed any of the child pornography.”

15.  Whilst the Judge rejected PW8’s analysis in relation to the access of certain files on the computer, Mr Boyton contends that his evidence gave “some credence” to the applicant’s case that he may not have seen or known of the child pornography in his computer.  He complains that the Judge had inappropriately disregarded this evidence.

16.  It would appear that the expert forensic evidence was unsatisfactory, and in certain respects unclear.  The Judge turned to consider the other evidence before him. 

The applicant’s admission

17.  Significantly, it was an admitted fact that the applicant’s computer contained a large volume of pornographic material which included photographs and video clips containing child pornography.  The child pornographic material was not insignificant and the Judge addressed whether on the applicant’s own admission he knew and accessed the child pornography. 

18.  In contesting the charge, the applicant testified that he did not knowingly download child pornography, only adult pornography and had not seen the child pornography or suspected there was child pornography on his computer.  He stated that under caution, he did not admit that he knowingly downloaded child pornography.  He relied on the statutory defence in section 4(3)(c)  of the Ordinance that he had not seen the child pornography and did not know, nor did he suspect, it to be child pornography. 

19.  The Judge found that the applicant by his answers in his video recorded interview admitted that he had viewed the child pornography and when he said he was sorry, he was apologising for downloading child pornography and not as he testified for searching adult pornography.

20.  Mr Boyton submits that the Judge was wrong to come to this conclusion.  He argues that whilst the applicant in the video recorded interview admitted he downloaded a large quantity of pornographic material from the eMule programme, he repeatedly insisted that he did not do so to access child pornography. 

21.  Mr Pierre Lui, for the respondent, argues that the applicant answered questions in the context of child pornography having been found on his computer.  He refers to answers by the applicant which he says the applicant acknowledged that he had downloaded the child pornography.[8]  However, there were answers given by the applicant that were inconsistent with this submission.  In one of his answers he said:[9]  

“It’s when I downloaded. It’s like a -- it’s a general search. When you press on the application, it’s a general search, and everything comes up, including child pornography. You have hundreds of lists. I just select them all, ‘download’. I don’t really go through each one. Because you need to wait for it to download before you can actually see it. So basically I just let it download, and that’s it.”

22.  He also insisted he had no intention to download or access child pornography:[10]

“It’s possible I think to also check in the computer if I’ve went on any child pornography sites. Because I haven’t. I’m not like those, ‘I have to watch child pornography or …’ I’m not that kind of person.”

23.  He later explained:[11]

“I’m not like trying to defend myself to say because I have no time that this means that what I did was -- is okay. What I’m trying to say is that I don’t have intention to -- in child pornography. I don’t have the intention to go to the websites or to look at these sort of things. It’s wrong to download any of this pornography, and I take responsibility for this.”

24.  He denied that he paid for any child pornography; reposted any child pornography; saved child pornography on other devices; printed child pornography or shared child pornography.[12] He said that if he saw child pornography he would delete it but he did not know there were underage children involved until he looked at the material.[13]  However, a large quantity of child pornography had not been deleted on his computer. 

The basis of the conviction

25.  The Judge directed himself that on a charge under section 3(3)  of the Ordinance the prosecution had to prove beyond reasonable doubt that the photographs and video clips particularised in the charge were child pornography within the definition of section 2 of the Ordinance and that the applicant was in possession of the child pornography. He explained that possession involved the prosecution proving that the applicant had control and knowledge of the existence of the photographs and video clips on the computer but not that the applicant knew they were child pornography or that he had opened the files: HKSAR v Justin Yves Herbonnet [2006] 1 HKLRD 862; Atkins v DPP [2000] 1 WLR 1427; McMurdo v HM Advocate [2015] HCJAC 37; and R v Okoro (No 3) [2019] 1 WLR 1638.  This was subject to the defences under section 4 of the Ordinance.

26.  The Judge rejected the applicant’s evidence and was of the view that the applicant acknowledged in his out-of-court statements that he had downloaded child pornography onto his computer and was sorry.  The Judge said:[14]

“297. Having rejected the defendant's evidence, I find that the defendant has failed to adduce sufficient evidence to raise an issue with respect to the fact that he had not seen the child pornography and did not know nor suspect it to be child pornography. I have nevertheless considered whether the prosecution can prove the defendant had viewed the child pornography or knew or suspected child pornography was on the computer.

…

299. I am satisfied that in answer to caution and in the video recorded interview the defendant was admitting he downloaded the child pornography and that he had viewed some of the child pornography albeit rarely. I am satisfied in answer to caution when the defendant asked for a chance and in the video recorded interview said he was sorry, he was asking for a chance and saying he was sorry for downloading child pornography which is unlawful and not sorry for downloading adult pornography which is not unlawful. I am satisfied full weight is to be attached to the defendant's admissions.

300. I do not find credible the defendant's evidence that he never imagined any of the files were child pornography and did not suspect any of the files to be child pornography. In the video recorded interview, the defendant said he used search words like ‘Jap’ (see counters 352-355). In Annex 1 ‘Jap’ is found in the file name of at least 108 child pornographic videos of which the names of 51 files specifically refer to children under the age of 16.[15]

27.  The Judge was satisfied to the requisite standard that given the frequency of the English names amongst the files downloaded with references to children or preteens, it could not have escaped the user that child pornography was present on the computer and that the applicant therefore knew or suspected child pornography was on the computer and had viewed it.[16]

The conviction appeal 

28.  In respect of the appeal against conviction, Mr Boyton criticises the Judge for failing to consider the evidence of the prosecution experts as supporting the statutory defence that the applicant may not have seen or known of the child pornography in his computer (Ground 1). Furthermore, he also criticises the Judge for the weight he placed on the applicant’s references to pornography in his video recorded interview, as being a reference to child pornography (Ground 2).  The essence of the complaint under these grounds of appeal is whether the Judge rightly convicted the applicant for knowingly being in possession of child pornography.  Whilst there is merit in Mr Boyton’s argument that the Judge may have unduly considered that the applicant was referring to child pornography when he was mentioning pornography in general in his video recorded interview, the Judge also supported his finding that the applicant was guilty of the offence by reference to the child pornography material on the applicant’s computer and to certain searches that must have been conducted by him.

29.  Whilst the grounds of appeal against conviction are reasonably arguable, it is questionable whether they would disturb the conviction given the large quantity of child pornographic material and the apparent presence of it in the applicant’s computer at the material times. 

The sentence appeal

30.  In sentencing the applicant, the Judge set out the relevant sentencing guidelines and determined the classification level of the child pornography involved.[17] As noted by him, a large portion of the child pornographic material were at the highest classification level, involving grotesque and depraved acts of sexual activity with children.  Taking into account that the maximum sentence for the offence was 5 years’ imprisonment, the Judge adopted a starting point in the upper range of the general guideline of 3 years and 6 months’ imprisonment, which he reduced by 4 months because of the inordinate delay in bringing the case on to trial.

31.  In respect of the appeal against sentence, Mr Boyton complains that the sentence passed by the Judge failed to take into account, as a mitigating factor, that the eMule programme may have supported the applicant’s testimony that he did not know of all the child pornography files on the computer.  See HKSAR v Justin Yves Herbonnet, at [5] and [6].

32.  This ground is based on the proposition that the eMule programme provided a large assortment of pornographic material which included child pornography.  It is contended that the applicant did not specifically download child pornography, nor would he have been aware of the nature and volume of such material, because it was dispersed amongst a mass of other pornographic material.

33.  As mentioned in addressing the appeal against conviction, the evidence showed that searches for preteen pornography had taken place on the computer, but Mr Boyton submits that it was unclear to what extent the applicant knew and had accessed the child pornography that had been downloaded onto his computer by the eMule programme.  He essentially argues that the Judge erred by nominally sentencing the applicant on the child pornographic material on the computer as if he knew and had accessed the entirety of it.

34.  Mr Boyton contends the evidence was unclear to what extent the applicant had downloaded and possessed child pornography, which was mixed with other pornographic material, and it is this fact that he complains was not taken into account in determining the gravity of the applicant’s offending and the appropriate level of punishment for it.

35.  I am persuaded that this ground of appeal against sentence is reasonably arguable.

Conclusion

36.  For the reasons I have given, I am satisfied that the two grounds of appeal against conviction are reasonably arguable, although the question remains whether the substance of these grounds, if any, would disturb the applicant’s conviction for this offence.  I am also satisfied that the ground of appeal against sentence is reasonably arguable.  Accordingly, I grant the applicant leave to appeal against his conviction and sentence.