HKSAR v. LEUNG CHI KEUNG

DCCC 97/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 97 OF 2015

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance[1](charge 1), and one charge of possession of apparatus for radiocommunications without a licence, contrary to section 8(1)(b) and section 20(a) of the Telecommunications Ordinance,[2] (charge 2).

Introduction

2.  In summary on the evening of the 29th January 2014 the police executed a search warrant at Flat D, 9/F, Lok Moon Mansion, 29-31 Queen’s Road East in Wan Chai, where the defendant resided together with his parents and younger sister. 

3.  The police seized from the defendant’s bedroom a white desktop computer (“the computer”) and three radio-transceivers.  Subsequent forensic examination of the computer by DSPC 23344 of the Technology Crime Division revealed that sixteen video files and thirteen photo files suspected to be child pornography were stored on the computer.  Ten of the video files and four of the photo files are the subject of charge 1.  The photo files were originally referred to in the charge as four photo images.  This was later amended to read four still films.  I will in my verdict refer to these as photo files the term used by DSPC 23344. 

4.  The three radio-transceivers were examined by Mr Lau Yat Fan, an assistant inspector of communications with the Communications Authority, who found them to be apparatus for radiocommunications, for which a licence is required.

Evidence

5.  The prosecution called three witnesses referred to in the opening, namely: PC 4440 (PW2), who seized the computer and the three radio-transceivers and drew a sketch of the flat (exhibit P9); DSPC 23344 (PW4) and Mr Lau Yat Fan (PW6). 

6.  Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance[3] (exhibits P8, P8A, P8B & P8C).  I will refer to the admitted facts as I review the evidence. 

7.  The defendant elected to give evidence.  No witnesses were called on his behalf.   Admitted in evidence is that the defendant has no criminal convictions.[4]  I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[5].

8.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout. The defendant has to prove nothing.  I direct myself that I must be sure of the defendant’s guilt on each charge, each charge being considered separately.  On the other hand if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted. 

9.  I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.  

10.  I have carefully considered all the evidence and the written submissions of Mr Tracy and Mr Boyton.  I have in court expressed in very strong terms, more than once, my view as to Mr Tracy’s submission on charge 1.  I do not propose to repeat those criticisms here.

Charge 1 - Possession of child pornography

11.  On a charge under section 3(3) of the Ordinance the prosecution must prove beyond reasonable doubt that the defendant was in possession of the child pornography.  This involves the prosecution proving that the defendant had control of and knowledge of the existence of the video files and photo files on the computer but not that the defendant knew they were child pornography (see HKSAR v Justin Yves Herbonnet[6]; Atkins v DPP [7] and McMurdo v HM Advocate[8]).

12.  Save that the computer was found in the defendant’s bedroom the prosecution opening does not say on what evidence the prosecution rely upon to prove that the defendant was aware of the video files and photo files on the computer.  The opening simply states the seizing of the computer and the finding of the child pornography on the computer. 

13.  When asked by the court what evidence the prosecution will seek to adduce with regards to knowledge Mr Tracy recognizing that knowledge was the issue in the case stated that the court would be asked to infer knowledge from the circumstances of the finding of the computer; the admissions to be made by the defendant that he was the owner and in possession of the computer on the material day; and the evidence of DSPC 23344.   

14.  The defence case in summary is that the defendant was not aware that the video files and the photo files were on his computer.  The defendant says that he believed there was a virus on the computer and therefore the child pornography may have been downloaded by the virus.  The defendant also says that the computer was used by his parents, younger sister and her boyfriend and anyone else who visited the home.  The defence contend therefore that the defendant was not in exclusive control of the computer and thereby implying other users of the computer may have downloaded the child pornography without the knowledge of the defendant.   

15.  If the defendant was not aware that the video files and the photo files were on his computer is true or may be true the defendant is entitled to be acquitted (see Atkins v DPP).[9] If the prosecution prove beyond reasonable doubt that the defendant was in possession of the child pornography the defendant may rely on any of the statutory defences set out in section 4 of the Ordinance. 

16.  By saying he was not aware of the child pornography on his computer the defendant relies on the statutory defence in section 4(3)(c) that he had not seen the child pornography and did not know nor suspect it to be child pornography.[10]  

Prosecution evidence

17.  I now turn to consider the evidence.  The principal evidence adduced by the prosecution is that of DSPC 23344 Tsang Nung Keung.  DSPC 23344 retired in June this year.  In my verdict I will refer to Mr Tsang as DSPC 23344.  Three statements of DSPC 23344 have been read pursuant to section 65B of the Criminal Procedure Ordinance[11] (exhibits P10, P11 & P12) and adopted as part of his evidence-in-chief. 

18.  There was no challenge to the expertise of DSPC 23344.  DSPC 23344 had worked in the Technology Crime Division since September 2005 and held various qualifications in computing.  I was satisfied DSPC 23344 was able to give expert evidence on computer forensic examination. 

19.  DSPC 23344 examined the hard disc of the computer and found the child pornography subject of the charge.  In evidence DSPC 23344 said he conducted the examination with the forensic programme Encase. After examining the hard disc DSPC 23344 restored the hard disc contents to one “Western Digital” external USB hard disc, exhibit P5.  This is referred to in the admitted facts as a disc cloned from the hard disc[12] and in the evidence of DSPC 23344 as the simulation of the computer. 

20.  In order that the court could fully understand all aspects of the expert evidence this necessitated lengthy questioning by the court both during and at the end of the evidence of DSPC 23344 including asking DSPC 23344 to demonstrate how the user of the computer could access the video files and the photo files.

21.  Unless otherwise stated I accept the expert evidence of DSPC 23344.  I do not propose to set out here a detailed summary of the expert evidence.  I will refer to the relevant parts when reviewing the evidence. 

Finding of the child pornography

22.  The finding of the child pornography on the computer has not been challenged and can therefore be briefly stated.  DSPC 23344 found on the hard disc of the computer sixteen video files of suspected child pornography and thirteen photo files of suspected child pornography and personal photographs of suspect (see paragraph 5 of both the first and second statements of DSPC 23344, exhibits P10 & P11). 

23.  Thevideo files and photo files are listed in Annex A to both the statements (marked exhibits P10A and P11A with the agreed translations at P10B and P11E). Admitted in evidence is which of the video files and photo files are the ten video files and the four photo files particularised in the charge.[13]  Also admitted is that these ten video files and four photo files are child pornography.[14] 

24.  From exhibit P5 a photograph album (exhibit P6) has been produced showing the image of each of the four photo files and a screen capture from each of the ten video files.[15]     

25.  I am satisfied so I am sure that child pornography was found on the computer.  The finding of the child pornography on the computer is not sufficient to prove the defendant was in possession of that child pornography.  As stated earlier the prosecution must prove the defendant had control of and knowledge of the video files and the photo files on the computer. 

26.  In determining whetherthe defendant was aware of the video files and the photo files on the computer, the location where the video files and photo files were found; whether the files were ever viewed and how to access the files are relevant matters for consideration.

Location of the child pornography

27.  The evidence of DSPC 23344 was that all the video files including the ten child pornography video files were found in C drive, under the “Download” folder of which the full path is C\Users\user\Downloads\Foxy\Download.[16]  Six of the thirteen photo files were also found in the same folder.  These are nos. 13, 14, 15, 16, 18 & 20 of Annex A to the first statement of which nos. 13, 15, 16 & 20 are the 4 photo files subject of the charge.[17]   

28.  A first reading of paragraph 5 (ix) of DSPC 23344’s first statement (exhibit P10) gives the impression that suspected child pornography was found together with personal photographs of the suspect.  The remaining seven photo files do not contain any child pornography or suspected child pornography.  They are in different locations and are all personal photographs.  The fact they were not found together with suspected child pornography should have been made clear at the beginning of the trial.  

Has the child pornography been viewed?

29.  Annex A to both the first and second statements of DSPC 23344[18] shows the time the video files and the photo files were last accessed; created and last written together with the hash value of the files.  These terms are explained by DSPC 23344 under the heading “Remark” after paragraph 9 in his second statement.[19]

30.  From this data it can be seen that the ten video files were created between the 27 September and the 29 October 2008 except one which was created on the 28 July 2009.  The files were last written on the same day they were created save for one which was last written the following day.  The files were also last accessed on the same day they were created save for two which were created in September 2008 and last accessed in October 2008.  The four photo files were all created in September 2008 and last written and last accessed on the same day they were created. 

31.  The Last Accessed Timestamp was disabled.[20] DSPC 23344 explained in court that because the Last Accessed Timestamp was disabled the last access time will not be changed if the video file is opened unless the video file is also saved at the same time.  The last access times shown in Annexes A may not therefore be the last time the files were viewed.

32.  This is not however the only evidence that the video files were viewed.  As part of his examination DSPC 23344 was specifically tasked to see whether the files had been opened by the computer user.[21]

33.  DSPC 23344 found sixteen Windows shortcut files which were linked to ten video files.  The presence of the shortcut files show that the files had been opened by a video playing program.[22] Seven video files were opened by Real Player and three by another video playing program.  In evidence DSPC 23344 said that he could not see which video playing program was opened to play these three video files.   

34.  Annex B1-B3 to the second statement lists out the ten video files to which the sixteen shortcut files are linked alongside the time the shortcut files were last accessed; created and last written together with the hash value of the shortcut files.[23] Except for video files 3 & 6 the shortcut files are linked to child pornography video files.[24]

35.  From this data it can be seen the shortcut files linked to the child pornography video files were created at various times between 28 September 2008 and the 24 April 2013.  The shortcut files were last accessed and last written on the same days between 1 June 2012 and the 24 April 2013 except one shortcut link which was last accessed and last written on the 7 October 2008.  DSPC 23344 explained in evidence that the disabling of the Last Accessed Timestamp did not affect the last access time of the shortcut files.  The last access times shown in Annex B1-B3 are therefore the last times the files were viewed.   

Access to the child pornography

36.  The prosecution did not ask DSPC 23344 to demonstrate how the child pornography could be accessed, whether by following the full path or a shortcut.  In order to fully understand DSPC 23344’s evidence I therefore asked DSPC 23344 where the child pornography was located and to demonstrate how a user of the computer would access the child pornography.  DSPC 23344 first demonstrated how to access the files in “Download” from the full path: C\Users\user\Downloads\Foxy\Download and the shortcut files from the path C\Users\user\AppData\Roaming\Microsoft\Windows\Recent.

37.  In the Foxy folderthere are two folders “Download” and “Temp”.  When DSPC 23344 opened the folder “Download” the screen showed a list of 181 files.  The names of all the suspected child pornography files could be seen, all of which DSPC 23344 believed had been downloaded through the Foxy application because they were in the folder under Foxy.  In the folder “Recent” there are 150 files, including the shortcut files linked to the child pornography files.  Again the names of all the suspected child pornography files could be seen. 

38.  These two demonstrations were made by using the programme Encase Law Enforcement and not from the simulation of the computer (exhibit P5).  The remainder of the demonstrations were from the simulation of the computer.[25]

39.  DSPC 23344 next demonstrated how to access the files by using the shortcut files as seen in Annex D to his second statement.[26] Although DSPC 23344 said there was only one short cut file shown on Annex D both parties accept that there are in fact three shown, two of which are linked to the child pornography video files.[27]  Access is by clicking the start menu on the simulation of the computer’s user home screen/desktop then documents (D) which opens up the box seen in Annex D.  The box shows the names given to the shortcut files including the names of the child pornography files. 

40.  DSPC 23344 demonstrated access to all the files by right clicking the start menu on the simulation of the computer’s user home screen/desktop then file manager (X) from which the full path: C\Users\user\Downloads\Foxy\Download is reached.  The “download” folder is opened showing the names of 179 files together with images of the photo files including the names of the child pornography files and the images of the four photo files as depicted in the photographs, exhibit P6.

41.  DSPC 23344 also demonstrated an alternative way to access the files which had no shortcut file.  This was by clicking “user” located on the top line of the box containing the shortcut files in Annex D.  From the “user” folder the files can be accessed by following the path Downloads\Foxy\Download.  Direct access to the “user” folder can also be made by clicking the “user” icon which is located in the top right hand corner of the home screen page/desktop (seen on Annex D).  The “download” folder is again opened showing the names of the 179 files, including the names of the child pornography files and the images of the four photo files as depicted in the photographs, exhibit P6.

Real Player

42.  DSPC 23344 also demonstrated how to access the files directly from Real Player. Real Player is accessed by clicking the start menu on the simulation of the computer’s user home screen/desktop then programmes from where the Real Player programme can be opened.  By clicking file (F) the box seen in Annex C is opened.  No. 5 in the box is a shortcut file which points directly to the video file entitled: “Rape Primary School Student”.  This is one of the suspected child pornography video files found by DSPC 23344 but is not one of the ten video files subject of the charge.   

43.  DSPC 23344 described the other suspected child pornography files not shown in Annex C as “hidden” and which needed to be looked for.  Access is by clicking open (O) or Ctrl+O seen at the top of the box in Annex C then Browse (B).  The path C\Users\user\Downloads\Foxy\Download is reached and the “download” folder opened.  The names of the 179 files, including the names of the child pornography files and the images of the four photo files as depicted in the photographs, exhibit P6 are again shown.

44.  In cross-examination DSPC 23344 disagreed with Mr Boyton that a file can be opened and a shortcut created without the video being played.  I therefore asked DSPC 23344 to demonstrate the playing of a video.  DSPC 23344 selected one of the child pornography video files from the Foxy “download” folder.[28]  By double clicking on the name of the file the video was automatically played by Real Player.  DSPC 23344 then showed that shortcuts of the video file had been created which replaced shortcuts in both Annex C and Annex D.  Earlier in evidence DSPC 23344 had explained that the number of shortcuts that could be shown in the box in Annex D was limited to fifteen.

Foxy

45.  All the files having been found in the download folder of Foxy, mention should be made here of Foxy.  Foxy is a peer to peer file sharing application which enables the user to share files stored on his computer with other Foxy users and to look for files shared by other Foxy users.[29]  During cross-examination DSPC 23344 confirmed that Foxy was installed on the computer however he did not check whether Foxy was working properly. 

“Files to be downloaded automatically is not an option for Foxy users”

46.  One of the tasks of DSPC 23344 was to see whether the Foxy application downloads files to the computer automatically without the user’s knowledge.[30]  DSPC 23344 explained in evidence that the user had to select which files he wanted downloaded, including child pornography files, because files will not be downloaded automatically by Foxy.      

47.  During further cross-examination arising from questions asked by the court Mr Boyton asked DSPC 23344 whether Foxy had a record of searches.  DSPC 23344 replied there was and demonstrated this by accessing the Foxy programme direct from the Foxy icon seen on the toolbar on the simulation of the computer’s user home screen/desktop.[31]   

48.  A photograph showing the search history was taken later and is attached to the written submission of Mr Boyton.  The search history lists the key words used to search for a file from other Foxy users.  DSPC 23344 confirmed that in the search history there was no record of searches for child pornography.  In further re-examination DSPC 23344 said that this search history can be cleared by clicking on the last line of the search history.  To be noted here is that this is not a history of files viewed as subsequently submitted by Mr Boyton.[32]

49.  DSPC 23344 also explained how to search for a file from other Foxy users.[33]  If the key words of the search resulted in any “hits” a list of files would appear.  By selecting a file this would be downloaded onto Foxy.  By clicking on the download icon (a globe) the name of the file selected could be seen and the percentage of the file that had been downloaded.  This was later photographed during the defendant’s evidence and marked “C”.  DSPC 23344 disagreed with Mr Boyton that the video file could be played at the same time as the file was being downloaded. 

50.  Notwithstanding the child pornography files were all found in the download folder of Foxy the prosecution did not adduce in evidence whether the files could be accessed and viewed directly from Foxy without the need to go through C drive or the shortcuts.  At the end of the questioning by Mr Boyton DSPC 23344 confirmed that the files could be opened directly from Foxy rather than by the shortcuts.      DSPC 23344 was not however asked to demonstrate how all the 181 (179) files could be accessed directly from Foxy. 

51.  In summary this evidence shows that:

(i) all the child pornography files were created in 2008 except one file which was created in 2009;

(ii) all the child pornography files were found in the same location in the Foxy download folder;

(iii) including the child pornography files a total of 181(179) files were found in the Foxy download folder;

(iv) all the files including the child pornography files could be accessed from C drive; shortcuts and directly from Real Player or Foxy;

(v) all the child pornography files had been viewed;

(vi) the last access time ranged between 2008 and 2013 (see Annex A to both the first and second statements of DSPC 23344, exhibits P10 & P11 as read with Annex B to the second statement); and

(vii) the names of all the files, including the names of the child pornography files and the images of the four photo files can be seen when accessing the foxy download folder whether from C drive or from Real Player.

Control

52.  Admitted in evidence is that the defendant was the owner of and in possession of the computer, which was found in his bedroom.[34]

Defence evidence

53.  In summary the defendant testified that he lived at home with his parents and younger sister, Leung Wing Yan, whose boyfriend “Billy” would sometimes, until around 2014, stay overnight.

54.  Between 2005 and 2013 the defendant worked as a tour guide which required him to travel overseas.  During this time the defendant would spend about one week per month in Hong Kong. 

55.  The defendant bought the computer about 8-9 years ago for his own use and for use by his family members.  On one occasion when the defendant returned home from a tour he saw Billy playing on the computer.  In cross-examination the defendant said this was between 2008 and 2009.  Anybody who came to the home could also play on the computer.    

56.  Initially the computer was placed in the living room for everyone to use and was connected to a monitor and a router.  The router was also connected to a modem in his younger sister’s bedroom to enable access to the internet.  The defendant did not create any specific user accounts and no password was required to use the computer.  The computer could therefore be turned on and used by anybody. 

57.  After purchasing the computer the defendant began to observe various problems, which in court have been described as breaking down; lost control; not working properly and malfunctioning.  The defendant believing the computer had contracted some virus purchased the anti-virus software NOD 32 (exhibit D5) which he installed on the computer.  In cross-examination the defendant said that it was around 2009 that he believed the computer had a virus. 

58.  The installation of NOD 32 did not however solve the computer problems which in fact became worse.  Family members told the defendant that sometimes they “lost control” of the computer.[35]

59.  Due to the need to go overseas the defendant seldom used the computer.  When he did the defendant used the programme WinAmp to play videos.  The defendant also used Foxy to look for videos as did his family members and Billy.  The defendant said he rarely used the Windows shortcuts to look for videos and never used Real Player. 

60.  During his evidence the defendant was asked by Mr Boyton and the court to demonstrate how he accessed video files on the computer.  Photographs of various screen shots were taken which have been marked at the request of the prosecution as exhibit P15; at the request of the defence as exhibits D6 & D7; and at the request of the court as A, B, C & D together with agreed translations[36] which were submitted prior to closing submissions.[37]

61.  Around 2013 the computer was out of order and the defendant without consulting his family members placed the computer in his bedroom without any wires or cables attached.  When Mr Boyton drew to the defendant’s attention that according to the data sheet prepared by DPC 4384,[38] that the 25 April 2013 was the last time the computer was accessed, the defendant said this was approximately the time the computer was out of order.  The computer was placed in the defendant’s bedroom because his family members used to put all things in his bedroom, including a “Hello Kitty” doll and clothes belonging to his parents as shown in photographs 12, 22 & 25, exhibit P7. 

62.  After re-examination when the court referred to this evidence the defendant said he did not put the computer in his bedroom.  The defendant explained that because he was often out of Hong Kong his family members used his room as if it was a storage room.  In 2013 because the computer malfunctioned his family members said to him, “How about we just put it in your room first or for the time being?”   

63.  The defendant did not throw away the computer because he said he had some photographs and information on the computer from his previous tours.  No replacement computer was bought for the family to use although the defendant had earlier bought a notebook computer for use in his work.

64.  The defendant said that he had no idea who last used the computer; no idea that the ten video files and the four photo files ever existed; no idea who they belonged to and that he had never accessed them. 

Consideration of the evidence

65.  I have no hesitation in rejecting the defendant’s evidence that he had no idea that the ten video files and the four photo files ever existed on the computer.  I do not find the defendant’s evidence credible for example I do not find credible the defendant’s evidence as to Real Player and Foxy.

Real Player

66.  The evidence of DSPC 23344 is that sixteen Windows shortcut files were found linked to ten suspected child pornography video files.  Seven of the video files were believed to have been opened by Real Player, six of which are child pornography.[39]

67.  The defendant testified that he never used Real Player and that when experiencing problems with the computer Real Player would automatically pop-up. The defendant described two situations when Real Player popped up.  First ‘subtitles’ would appear which the defendant could not read.  In this situation the defendant said all he could do was click “OK”. 

68.  The second situation was that Real Player would freeze saying that there was no response from the programme.  As a result the defendant would manually shut down Real Player by pressing alt/ctrl/delete and then switch off the computer.  Later in evidence the defendant said that he manually shut down Real Player when the Real Player window popped up as shown in photograph, exhibit D6. 

69.  When the court asked the defendant whether he ever watched police dramas the defendant replied he had watched one episode of “Cadre police on duty.”  The defendant explained that his sister had told him that he could access the video from Foxy downloads.  On drawing to the attention of the defendant that Annex D to the second statement of DSPC 23344 showed shortcut links to “Cadre police on duty” having been opened in Real Player, the defendant replied that Real Player was not working. [40]

70.  I have no hesitation in rejecting the defendant’s evidence that Real Player was not working.  As already described DSPC 23344 demonstrated in court the playing of one child pornography video by Real Player.[41]  If the demonstration given by DSPC 23344 is repeated nine of the ten child pornography video files can be played on Real Player.  Further as can be seen from Annex B to the second statement of DSPC 23344,[42] the video files were last accessed on Real Player in 2008, 2012 and 2013, showing that Real Player had been working for that period of time.   

Foxy

71.  The defendant testified that he used Foxy to view videos from the internet.  In evidence-in-chief the defendant explained that after a video had been downloaded by Foxy he would open the video directly from the download section of Foxy shown in photograph “C”.  The defendant said he did not look anywhere else for Foxy videos. 

72.  After re-examination I asked the defendant to show the court how he accessed Foxy.  The defendant demonstrated by first clicking on the Foxy icon seen on the toolbar on the simulation of the computer’s user home screen/desktop which opens the home page of Foxy.  The home page of Foxy is shown in photograph “B”. 

73.  To view a video file downloaded by Foxy the defendant would click on the download icon (a globe) on the home screen of Foxy.  This opens a box showing a list of files downloaded by Foxy.  The defendant said he downloaded these files.  This is when photograph “C” was taken.    

74.  All the files shown in photograph “C” are music files.  When this was drawn to the attention of the defendant he repeated that when he downloaded videos he would view the video from the download icon.  The defendant however was unable to say in which location the videos he had viewed were. 

75.  All the videos can be found by clicking on the box “View downloaded folders”,[43] which is seen above the list of files in photograph “C”.  This opens the “download” folder of Foxy as shown in photograph “D”.  The names of 179 files can be seen together with images of the photo files including the names of the child pornography files and the images of the four photo files as depicted in the photographs, exhibit P6.  At my request a table was prepared setting out which of the 179 files are the child pornography files.  This is annexed to the written submission of Mr Tracy.  The same “download” folder of Foxy was opened when DSPC 23344 demonstrated access to the files from the simulation of the computer.[44]

76.  When the court asked the defendant if he ever browsed any files from “View downloaded folders” the defendant replied he did not and said that the files he wanted to view were in the box shown in photograph “C”.  When asked how he viewed videos (the box showing only music files), the defendant replied that initially there were MTV video files shown in the box but he did not know why they were not there now.  

77.  The download folder of Foxy was then opened by clicking on “View downloaded folders”.  The defendant agreed that pornographic images were shown.  When asked if he had anything to say about what was shown the defendant replied that there were MTV video files and a lot of MP3 (music) files which belonged to him.  When asked by the court if he wished to say anything as to why music videos and MP3 files belonging to him were found in the same folder as pornographic files the defendant replied “I have no idea”.  

78.  In re-examination the defendant said this was the first time he had seen what is shown in photograph “D” and that after he had watched a video he did not pay any more attention to the video.  The defendant said that he only knew how to find a video from the download icon and that initially there would be a record of the video file he had viewed in the box seen in photograph “C”.  When Mr Boyton asked how he would find a file no longer shown in the box the defendant replied that from what he remembered he would search the key words again from other Foxy users.  Mr Boyton then asked:

Q. So you make a fresh internet search, is that right?

A. Yes, because I don’t know how to click those buttons.

79.  I have no hesitation in rejecting the defendant’s evidence that he only accessed files, whether music or video, from clicking the download icon.  I do not find credible the defendant never browsed any files from “View downloaded folders” which is on the very same page that the defendant says he accessed the download icon and made a search.  Nor do I find credible that the defendant would do a fresh search if he wanted to play a video again because he did not know how to click the other buttons.

80.  I remind myself that the rejection of the defendant’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing. A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Knowledge of the existence of the child pornography on the computer

81.  Taking into account that:

(a) all the child pornography files were created in 2008 except one file which was created in 2009;

(b) all the child pornography files were found in the same location in the Foxy download folder;

(c) including the child pornography files a total of 181(179) files were found in the Foxy download folder;

(d) all the files including the child pornography files could be accessed from C drive; shortcuts and directly from Real Player and Foxy;

(e) all the child pornography files had been viewed;

(f) the last access time ranged between 2008 and 2013 (see Annex A to both the first and second statements of DSPC 23344, exhibits P10 & P11 as read with Annex B to the second statement);

(g) the names of all the files, including the names of the child pornography files and the images of the four photo files can be seen when accessing the foxy download folder whether from C drive; Real Player or Foxy; and

(h) the child pornography files were easily accessible, especially from Real Player and Foxy (which the defendant admits he used) and from the shortcuts and not stored or hidden in an inaccessible place such as a cache (see Atkins v DPP)[45] or required special expertise or equipment to recover (see R v Leonard).[46]

I am satisfied so I am sure the only inference to draw is that the defendant was aware of the child pornography files on the computer.

Control

82.  As noted earlier admitted in evidence is that the defendant was the owner of and in possession of the computer, which was found in his bedroom.[47]  The child pornography was easily accessible and not stored or hidden in an inaccessible place such as a cache or required special expertise or equipment to recover.  I am satisfied so I am sure the only inference to draw is that the defendant had control of the computer and the contents of the computer, including the child pornography. 

83.  In addition in his own evidence the defendant admitted he bought the computer which he used albeit together with his family members; and that he did not throw away the computer because he said he had some photographs and information on the computer from his previous tours.  This also shows the defendant was in control of the computer and the contents of the computer.

84.  In drawing the inferences that the defendant was aware of the child pornography on the computer and had control of the computer and the contents of the computer, including the child pornography, I have carefully considered the defendant’s evidence that other family members used the computer and that he believed there was a virus on the computer.  

Who else used the computer?

85.  Mr Boyton submits there is a reasonable doubt that the defendant did not have exclusive control of the computer.[48]

86.  The defendant testified that there was no password to enter the computer and no user accounts had been set up.  DSPC 23344 did not check whether there was any password to use the computer and said there was only one user account “User”, which was created by Microsoft and was not password protected.  DSPC 23344 also agreed that Foxy was not password protected.  Anyone with access to the computer could therefore use the computer by simply turning on the computer. 

87.  As noted earlier the defendant said that his parents; younger sister and her boyfriend used the computer and that anyone who visited their home could also use the computer.[49] I find inherently improbable that a family member would download child pornography on a computer used by other family members, let alone leave the child pornography on the computer, easily accessible from Foxy or Real Player and not hidden, unless they knew their family members also wanted to view the pornographic material.    

88.  Specifically regarding the father, in cross-examination the defendant said that his father was not very familiar with computers and that he was only a beginner, having started in 2011.  In answer to the court, the defendant said he was not clear about whether his father used the computer prior to 2011.  Also in answer to the court, the defendant said that his mother first started using the computer between 2008 and 2009 before the problems with the computer started. 

89.  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. 

90.  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. 

91.  In answer to the court, the defendant said his younger sister had used the computer from the time the computer was purchased.  There is some evidence in support that the sister had at some stage used the computer.  When the computer was set up for the defendant to demonstrate how he accessed files on the computer, a series of pop-ups were seen.  One of these was Windows Live Messenger and is shown in photograph, exhibit D7. 

92.  The defendant testified that the email address shown on the pop-up is that of his younger sister Leung Wing Yan.  Notwithstanding the younger sister may have used the computer at some stage I find inherently improbable that she would download child pornography on the computer used by her brother and leave the child pornography on the computer for him to see unless she knew her brother also wished to view the pornography. 

93.  The only inference to draw from the finding of the child pornography on the computer owned by the defendant and found in his bedroom is that he was the only user of the computer after the child pornography was first downloaded on to the computer.  I reject that anyone else was using the computer after that time. 

94.  If I am wrong and cannot reject that others may have used the computer and downloaded the child pornography the question to ask is does this stop the inference being drawn that the defendant was in possession of the child pornography?   

95.  The prosecution do not have to show, as Mr Boyton submits, that the defendant had exclusive control.  In the Scottish case of Harris v HM Advocate[50], the defendant sought to incriminate his girlfriend for the presence of indecent photographs of children found on his computer.  The Court of Appeal held that more than one person might have access to the material and accordingly knowledge and control of that material.  Similarly in HKSAR v Justin Yves Herbonnet Line J[51] held that the fact others may have access to the computer did not stop the inference running.

96.  Therefore even if other family members used the computer and downloaded the child pornography I am nevertheless satisfied for the reasons set out earlier, in particular that the files had been on the computer since 2008 and 2009; were easily accessible from Foxy and that the names of the child pornography files and the images of the four photo files can be seen when accessing the files from Foxy, a programme which the defendant admits he used, that the only inference to draw is that the defendant was aware of the files on his computer and was in control of them.

Virus

97.  Mr Boyton submits that the court cannot rule out the possibility that the child pornography files were downloaded by a virus.[52]

98.  As noted earlier, around 2009 the defendant began to observe problems with the computer, variously described as breaking down; lost control; not working properly and malfunctioning.[53] When asked by the court how long he had the computer before the problems started, the defendant replied that in 2006 he reinstalled the Windows system which was 2-3 years before he began to observe problems with the computer.

99.  The problems included the computer automatically logging out after logging on; Real Player automatically popping up; the computer automatically connecting to the internet; and the speed of the computer getting slower and slower. 

100.  At the end of the first day the defendant gave evidence, I directed that the computer be set up the following morning.  After cross-examination, Mr Boyton applied for leave to ask further questions about various pop-ups seen on the simulation of the computer’s user home screen/desktop when turning on the computer. 

101.  The defendant explained that when he experienced problems with the computer he would see these pop-ups.  Photographs were taken of the pop-ups and marked exhibits D6 & D7.  When asked questions by the court a warning from Windows Security Centre popped up.  This was photographed and marked “A”.

102.  Believing the computer had contracted a virus, the defendant purchased the antivirus software programme NOD 32 (exhibit D5) which he installed on the computer.  Although in cross-examination the defendant was unable to point to anything on the simulation of the computer’s user home screen/desktop to show NOD 32 was installed, there is no doubt that NOD 32 was installed.  In answer to the court, the defendant demonstrated by clicking on the start menu and going to programmes that NOD 32 was found by going to the programme Eset.  Further during the demonstrations by the defendant, pop-ups were seen which also clearly showed NOD 32 was installed.   These pop-ups were not however photographed.

103.  After installation of NOD 32, warnings like exhibit D4 would automatically pop-up.  When asked by Mr Boyton what he would do when a warning popped up, the defendant described three situations.  First, the defendant would follow the direction of the warning and scan the computer to look for any virus or malicious programme.  In cross-examination the defendant said that if any virus or malicious programme was found, these would be “quarantined”. When asked by the court what he understood by “quarantined”, the defendant replied just like going to hospital and then went on to say that when malicious software was found, he would opt to remove the file and not treat the file. 

104.  Second, when browsing the internet, the user would be asked whether he wanted to continue or shut down the web page.  Third, when using Foxy, the user would be informed that Foxy was trying to connect to the internet.

105.  The installation of NOD 32 did not however solve the computer problems which in fact became worse.  Family members told the defendant that sometimes they “lost control” of the computer.  When asked by the court whether there was anything that happened which resulted in the computer no longer being used, the defendant replied that when he last used the computer, he was unable to open the user home screen/desktop.  The defendant said that if he remembered correctly he last used the computer in the winter prior to April 2013. 

Discussion

106.  In cross-examination PC 4440 (PW2) agreed when he seized the computer that the computer was not turned on and was not connected to any cable or equipment. According to the data sheet prepared by DPC 4384, the last time the computer was used was the 25 April 2013,[54] which was about nine months prior to PC 4440 seizing the computer.  

107.  The fact the computer was not turned on and was not connected to any cable or equipment when seized from the defendant’s bedroom is consistent with the defendant’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.

108.  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.[55]

109.  The submission that the child pornography files may have been downloaded by a virus is, in my view, nothing more than speculation.  In cross-examination after DSPC 23344 agreed that he did not investigate whether there was any virus on the computer, Mr Boyton asked DSPC 23344 whether he checked to see if there were any “pop-up windows” as a result of malicious software.  DSPC 23344 replied that this will not happen.  I reject the appearance of the pop-up windows was because of a virus.

110.  Contrary to the written submission of Mr Boyton, at no time was it ever put or suggested to DSPC 23344 that the child pornography found in the Foxy download folder was or may have been downloaded by a virus.[56] Apart from asking whether “pop-up windows” were as a result of malicious software, what Mr Boyton did was to show DSPC 23344 two information sheets prepared by the Information Technology Service Centre of The Chinese University of Hong Kong. 

111.  DSPC 23344 was first referred to “Risks in Peer-to-Peer File Sharing” (exhibit D2). DSPC 23344 agreed the risks of file sharing set out in paragraph 2 A) and B) including that peer to peer software users can easily contract computer viruses and the software may also contain viruses and worms which prevent the computer from functioning properly.  DSPC 23344 agreed that this would include slowing down of the computer and that freezing of the computer can occur.  DSPC 23344 again disagreed pop-up menus would appear because of a virus. 

112.  The second paper was “Know more about Foxy” (exhibit D3).  DSPC 23344 was referred to part IV, paragraph 3, “Infection of virus or worm”.  DSPC 23344 agreed with the statement that if the computer was affected by virus or worm, the Foxy settings could be changed without notice to the user. 

113.  DSPC 23344 had not heard of the two viruses mentioned in this part.  With regard to the two effects of the virus PE_POLIP A, DSPC 23344 agreed that the virus may consume a large amount of system resources and cause the computer to become noticeably sluggish.  DSPC 23344 said that it may be the case the virus may install malicious software to disable the security system, modify system files and install additional malware.

114.  The agreement by DSPC 23344 to these statements amounts to no more than agreeing the effects of a virus or a worm on the operation of a computer. The defendant’s belief that there was a virus is no more than a belief.  I find that there is no evidence before the court that there was or may have been a virus on the computer.    

115.  Even if there was a virus on the computer there must be evidence before the court that the downloading of the child pornography was or may have been because of a virus.  There is no evidence before the court that the child pornography was or may have been downloaded by a virus.  I reject the submission the child pornography may have been downloaded by a virus. 

116.  If I am wrong and cannot rule out that the child pornography may have been downloaded by a virus, the question to be asked again is, does this stop the inference being drawn that the defendant was in possession of the child pornography?  In my view the answer is also no.  Even if the child pornography was downloaded by a virus I am nevertheless satisfied for the reasons set out earlier, in particular that the files were easily accessible from Foxy and that the names of the child pornography files and the images of the four photo files can be seen when accessing the files from Foxy, a programme which the defendant admits he used, that the only inference to draw is that the defendant was aware of the files on his computer and was in control of them.

117.  Having carefully considered all the evidence I find I am satisfied so that I am sure that the prosecution have proved beyond reasonable doubt the defendant was in possession of the child pornography, the defendant having control of and knowledge of the existence of the video files and photo files on the computer.

Statutory defence

118.  The prosecution having proved beyond reasonable doubt that the defendant was in possession of the child pornography, it is open for the defendant to rely on any of the defences in section 4(3) of the Ordinance.  By saying he was not aware of the existence of the child pornography on the computer the defendant relies 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 suspect it to be child pornography. 

119.  A defendant is taken to establish any fact that needs to be established for the purpose of a defence under subsection (3)(c) if (a) sufficient evidence is adduced to raise an issue with respect to the fact; and (b) the contrary is not proved by the prosecution beyond reasonable doubt. 

120.  In HKSAR v. Ng Po On[57] Ribeiro PJ explained the nature of an evidential burden.  He stated:[58]

“An evidential burden stands in contrast to a reverse persuasive burden. It does not require the accused to establish anything as a matter of proof. An evidential burden arises where the defendant wishes to put in issue some matter that is potentially exculpatory while the prosecution continues to bear the persuasive burden throughout. In such cases, there must be evidence supporting such exculpatory matter which is sufficiently substantial that it raises a reasonable doubt as to the defendant’s guilt. Unless such reasonable doubt is removed, the prosecution fails to prove its case. If, on the other hand, the accused fails to adduce or point to any evidence on the relevant issue or if the evidence adduced is rejected or is not sufficiently substantial to raise a reasonable doubt, the potentially exculpatory matter places no obstacle in the way of the prosecution proving its case beyond reasonable doubt. An evidential burden, functioning in this manner, is wholly consistent with the presumption of innocence.”

121.  Later in the judgment Ribeiro PJ went on to add:[59]

“It must be emphasised that an evidential burden is not something nominal or illusory. It requires the defendant to adduce or otherwise be able to rely on evidence which is sufficiently substantial to raise a reasonable doubt which the prosecution must negative if he is to be convicted.”

In R v Lambert, Lord Hope of Craighead put this point as follows:

“If the evidential burden were to be so slight as to make no difference – if it were to be enough, for example, for the accused merely to mention the defence without adducing any evidence – important practical considerations would suggest that in the general interest of the community the burden would have to be a persuasive one. But an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence.”[60]

122.  This passage was also quoted in HKSAR v Hung Chan Wa.[61] Stock JA giving the judgment of the court said that the burden may be discharged regardless of the quarter from which the evidence derives but is not discharged by the mere mouthing of words by an accused.

123.  Having rejected the defendant’s evidence that he was not aware of the existence of the child pornography 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. Even on the defendant’s evidence that he believed the child pornography may have been downloaded by a virus and that family members also used the computer, I find that the defendant has failed to adduce sufficiently substantial evidence that raises a reasonable doubtthat he had not seen the child pornography and did not know nor suspect it to be child pornography.

124.  Although the prosecution are not required to prove the defendant had viewed the child pornography, I have nevertheless considered whether the defendant viewed the child pornography.  I am satisfied so I am sure on the evidence, in particular that the child pornography had been on the computer since 2008 and 2009; was easily accessible from Foxy, a programme which the defendant admits he used, and the inherent improbability of other family members using the computer unless they too wanted to view the child pornography, that the only inference to draw is that the defendant did view the child pornography.

125.  In reaching my verdict I have carefully considered everything said by Mr Boyton both individually and collectively, including that none of the defendant’s personal files, photographs or documents were found in the same folder as the child pornography;[62] no files were deleted;[63] and only a small quantity of pornography was found on the computer.  Nothing said by Mr Boyton causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made. 

126.  I am satisfied so I am sure the prosecution have proved all the elements of charge 1 beyond reasonable doubt.  The defendant is convicted of charge 1.

Charge 2 - possession of apparatus for radiocommunications without a licence

127.  Admitted in evidence is that the three radio-transceivers (exhibits P2-P4), for which no licence has ever been issued, were found in the defendant’s bedroom.[64]  The prosecution submit that the offence being one of strict liability the defendant has no defence to the charge.[65]

128.  The defence case is that no licence was required because the radio-transceivers were not working.  In addition the defence say that in 2011 two of the radio-transceivers had been seized by the police and subsequently returned to the defendant.  By returning the radio-transceivers the defendant believed that he would not be prosecuted for possessing them. 

Were the three radio-transceivers working?

129.  The three radio-transceivers were examined by Mr Lau Yat Fan, an assistant inspector of communications with the Communications Authority.  There was no challenge to the expertise of Mr Lau who held a higher diploma, a bachelor degree and a Master of Science in electrical engineering.  Mr Lau had worked for the Authority since 1998 and had examined suspected radio apparatus for over seven years.  I was satisfied Mr Lau was able to give expert evidence relating to the examination of apparatus for radiocommunications. 

130.  Mr Lau testified that in layman terms the three radio-transceivers were walkie-talkies.  All three were operable and worked normally and were able to transmit and receive broadcast words.  In answer to the court Mr Lau said that the three radio-transceivers were apparatus for transmission by radio waves.

131.  In cross-examination Mr Lau disagreed that when he received all three radio-transceivers they did not have batteries.  Mr Lau said exhibit P4 had a battery and pointed out to the court the battery which was attached to the bottom of the radio-transceiver.  Mr Lau confirmed that he was asked to examine a total of four radio-transceivers one of which he did not classify as communications apparatus because the radio-transceiver was not working.  Mr Lau disagreed P2, P3 and P4 were also not functioning. 

Defence evidence

132.  In summary the defendant testified that the three radio-transceivers were purchased for photo taking during war games.  Two were purchased from Yahoo (exhibits P2 & P3) and one from Apliu Street in Sham Shui Po (exhibit P4). The defendant had never used the three radio-transceivers and had no idea if they were functional or not. 

133.  Two of the three radio-transceivers (exhibits P2 & P3) had been seized by the police in 2011 and later returned to the defendant as evidenced by the “Receipt of Property Return” (exhibit D1).  The police told the defendant that they had been examined by an expert and that there was no problem with them.  The defendant accordingly felt that there was no problem with him possessing the radio-transceivers and that he would not be prosecuted for possessing them.

Consideration of the evidence

134.  I have no hesitation in rejecting the defendant’s evidence that he had never used the three radio-transceivers and had no idea if they were functional or not.  I do not find this evidence credible.  In cross-examination when put he knew they were in fact radio transmitters the defendant agreed and added, for the first time, that he knew they were not functional when he bought them. 

135.  When the court clarified with the defendant his evidence as to whether he knew the radio-transceivers were functional, the defendant replied that when he bought the radio-transceivers he really did not know whether they were functional or not.  When asked why he said in cross-examination he knew they were not functional the defendant replied he was told by the seller that they were not functional. 

136.  I accept the expert evidence of Mr Lau.  Mr Lau examined four radio-transceivers one of which he found was not working.  I am satisfied that if any of the three radio-transceivers were not working Mr Lau would also have said they were not working. 

137.  I am satisfied so I am sure that the three radio-transceivers fall within the definition in the Ordinance of radiocommunications transmitting apparatus for which a licence is required.     

Strict liability

138.  At the commencement of the trial Mr Tracy said the offence was not one of strict liability.  However, in closing submission Mr Tracy, relying on the decision in HKSAR v Uniglobe Telecom (Far East) Ltd,[66]submits the offence is one of strict liability.[67] Mr Boyton’s position from the beginning has been that the offence, being a licensing matter, is one of strict liability.

139.  The Court of Appeal in Uniglobe held that the offences of maintaining a means of telecommunication without a licence and using radio communication apparatus without a licence were offences of strict liability.  On appeal to the Court of Final Appeal the court in dismissing an appeal against conviction for maintaining a means of telecommunication without a licence confirmed that the offence was one of strict liability.[68] In allowing the appeal against conviction for using radio communication apparatus without a licence the Court of Final Appeal did not consider whether the offence was also one of strict liability.    

140.  Using radio communication apparatus without a licence is an offence contrary to section 8(1)(b) of the Telecommunications Ordinance, the same subsection under which the defendant is charged with possessing radiocommunication apparatus without a licence. 

141.  The Court of Appeal did not consider whether the offence of possession was also one of strict liability.  Whether an offence is one of strict liability is to be determined in accordance with the principles established in Hin Lin Yee & another v HKSAR,[69] and Kulemesin Yuriy & another v HKSAR.[70]  As both parties agree the offence is one of strict liability I have not been addressed on this issue and therefore which of the five alternatives apply to possession.  

142.  In the circumstances I proceed on the same basis as the Court of Final Appeal in Uniglobe, that the offence is one of strict liability in that the prosecution do not have to prove guilty knowledge, but that it is a defence for the accused to prove, on a balance of probabilities, that he honestly held upon reasonable grounds, a belief in the existence of facts which, if true, would make his conduct innocent.[71]    

143.  I have grave reservations that the police, when returning the two radio-transceivers, would have told the defendant that they had been examined by an expert and that there was no problem with them.  From the “Receipt of Property Return” the officers returning the property were from the Property Office and not officers involved in the investigation arising from the seizure of the radio-transceivers.

144.   The fact remains, however, that the prosecution have not sought to adduce any evidence in rebuttal as to what the defendant was told; why the radio-transceivers were seized in the first place and the reason for their return.  Whatever the defendant was told I am satisfied, on the evidence, that by returning the radio-transceivers the defendant honestly held upon reasonable grounds that he would not be prosecuted.  This belief in my view also extends to the possession of the third radio-transceiver.

145.  The defendant is acquitted of charge 2.

[1] Cap 579

[2] Cap 106

[3] Cap 221.

[4] § 2 of the admitted facts, exhibit P8.

[5] [1997-98] 1 HKCFAR 107.

[6] [2006] 1 HKLRD 862.

 Herbonnet was charged with possession of child pornography contrary to section 3(3) of the Prevention of Child Pornography Ordinance.

[7] [2000] 1 WLR 1427.

 Atkins was charged with possession of indecent photographs of a child contrary to section 160A of the Criminal Justice Act 1988.

[8] [2015] HCJAC 37.

McMurdo was charged with possession of indecent photographs of children contrary to section 52A of the Civic Government (Scotland) Act 1982.

[9] Judgment at pages 1439-1440.

[10] §6 of the written submission of Mr Boyton.

[11] Cap 221

[12] See §§9-11 of the first statement of DSPC 23344, exhibit P10 as read with § 9 of the admitted facts, exhibit P8.

[13] §1 of the second further admitted facts, exhibit P8B.  Despite repeated requests the court was only informed of this after DSPC 23344 had finished giving evidence. 

[14] §11 of the admitted facts, exhibit P8.

[15] §9 of the admitted facts, exhibit P8.

[16] See §5 and Annex A to both the first and second statements of DSPC 23344, exhibits P10 & P11.

[17] See §1 of the second further admitted facts, exhibit P8B.

[18] Exhibit P10A and P11A.

[19] Exhibit P11. 

[20] See §5 of the third statement of DSPC 23344, exhibit P12.

[21] See §4(i) of the second statement of DSPC 23344, exhibit P11.

[22] See §5 (iv) & (v) of the second statement of DSPC 23344, exhibit P11.

[23] Exhibit P11. 

[24] See §3 of the further admitted facts, exhibit P8A and the table referred to therein as read with paragraph 1 of the second admitted facts, exhibit P8B.

[25] The fact that DSPC 23344 used two different ways to access what was on the computer became  apparent during the defendant’s evidence when I asked to be provided with the clone, exhibit P5 or a copy, so that I could repeat the demonstrations.  Put simply from what the court was provided I was unable to access 181 files from the full path C\Users\user\Downloads\Foxy\Download.  By using the simulation of the computer only 179 files could be accessed the display of which was different from that seen when DSPC 23344 used the programme Encase Law Enforcement.  To try and ensure that the court was able to access the same as what DSPC 23344 demonstrated in court this necessitated a number of adjournments.  Finally after closing submissions had been adjourned twice the matter was fully explained with the provision of photographs “E”.  I then repeated in court all the demonstrations performed by DSPC 23344.

[26] Exhibit P11. 

[27] No.9 in Annex A, exhibit P10 and No.1 in Annex A, exhibit P11.

[28] No. 2 in Annex A, exhibit P10.

[29] See §§7-9 of the second statement of DSPC 23344, exhibit P11.

[30] See §4(ii), exhibit P11. 

[31] This was the first time the court was made aware that there was such an icon giving direct access  to Foxy.

[32] §§32 & 33 of Mr Boyton’s written submission.  In closing submission Mr Boyton accepted this was not a viewing history.

[33] This was after re-examination when Mr Boyton was given leave to further question DSPC 23344. 

[34] §§ 5 & 6 of the admitted facts, exhibit P8.

[35] See §§67, 68 and 98-105 for further details of the defendant’s evidence relating to the problems encountered with the computer.

[36] See admitted facts, exhibit P8C.

[37] See §§71-78 for further details of how the defendant accessed the video files.

[38] Exhibit P13 as read with §1 of the further admitted facts, exhibit P8A.

[39] See §5(v) of the second statement of DSPC 23344, exhibit P11 as read with Annex B. 

[40] Exhibit P11.

[41] See §44.

[42] Exhibit P11.

[43] Prior to a translation being provided this was translated in court as “Browse downloaded folder.”

[44] See §§ 40, 41 & 43.

[45] [2000] 1 WLR 1427.

[46] [2012] 2 Cr App R 12. 

Leonard was charged with possession of indecent photographs of a child contrary to section 160A   of the Criminal Justice Act 1988.

[47] §52

[48] §§23-29 of Mr Boyton’s written submission.

[49] §55

[50] [2012] HCJAC 5 at §§40-42.

Harris was charged with possession of indecent photographs of children contrary to section 52A of the Civic Government (Scotland) Act 1982.

[51] [2006] 1 HKLRD 862 at §§ 12-15.

[52] §§13-22 of Mr Boyton’s written submission as expanded in §§1-12 of his supplemental written submission.

[53] §57

[54] Exhibit P13 as read with §1 of the further admitted facts, exhibit P8A.

[55] See Annex A to both the first and second statements of DSPC 23344, exhibits P10 & P11 as read with Annex B to the second statement.

[56] §3 of Mr Boyton’s supplemental written submission.

[57] (2008) 11 HKCFAR 91.

[58] At §27

[59] At §§72 & 73

[60] It is a defence to possession of indecent photographs of a child contrary to section 160A of the Criminal Justice Act 1988 and section 52A of the Civic Government (Scotland) Act 1982 for the defendant to prove (not an evidential burden as in Hong Kong) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent.

[61] [2005] 3 HKLRD 291.

[62] §30 of Mr Boyton’s written submission

[63] §35 of Mr Boyton’s written submission as expanded in §11of his supplemental written submission.

[64] §§3 & 8 of the admitted facts, exhibit P8.

[65] §8 of Mr Tracy’s written submission.

[66] [1998] 2 HKLRD 507.

[67] §8.5 of Mr Tracy’s written submission.

[68] [1999] 2 HKLRD 44.

[69] (2010) 13 HKCFAR 142

[70] (2013) 16 HKCFAR 195

[71] At page 55J-56A