HKSAR v. HERBONNET, JUSTIN YVES

HCMA1153/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1153/2005

(ON APPEAL FROM ESCC 2038 OF 2004)

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J U D G M E N T

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1. The appellant appeals his conviction for possessing child pornography, contrary to section3(3) of the Prevention of Child Pornography Ordinance Cap. 579.

2. The first point that falls to be decided concerns the mental element of the offence.

3. The appellant argues that the prosecution had firstly to establish control of and knowledge of the existence of the prohibited article to prove possession, and that they then, secondly, had to prove knowledge of the broad nature of the prohibited article, such that the accused realised it might be child pornography.  It was said that the latter was required because the section created an offence requiring full mens rea.

4. The respondent agrees with the first part of the appellant’s argument concerning what has to be proved to establish possession.  They argue that the usual inference that full mens rea be required in a section creating a serious criminal offence is displaced here by the enactment of statutory defences in section 4(3) of the Ordinance.

5. Section 4(3) provides defences to a charge of possessing child pornography by providing for the defendant to establish, inter alia, at subsection (c) that he had not seen the child pornography and did not know, nor did he suspect it to be child pornography; and at subsection (d) that he had not asked for any child pornography and, within a reasonable time after it came into his possession, he endeavoured to destroy it.

6. In my judgment, the existence of these provisions demonstrates the respondent’s argument to be sound.  The existence of the defences reveals a concern for the man who puts himself in possession of child pornography without wanting it or intending it.  Such a situation would arise where a man downloads to his computer, either from a website or by transfer of files from others, material which in fact included images of child pornography.  The defence at (c) allows him to escape conviction if he raises the issue that he did not know or suspect that child pornography was arriving and the prosecution cannot disprove that beyond a reasonable doubt.  If he finds out that child pornography has arrived, if he had not asked for it, he has a reasonable time in which he must endeavour to destroy it if he is to avoid conviction. 

7. What would be the point of enacting these defences if the prosecution were required to prove the mens rea contended for?  The man who downloaded the child pornography in ignorance and without suspicion, and who had not seen it would not require the defence at (c).  Legislators cannot sensibly be taken to have merely been restating the obvious as the appellant argued.  Their concern, in my judgment, was fairly to limit and exactly define those situations where the possessor of child pornography should rightly escape conviction.  Thus at (c) they modified what would have been the situation at common law without the statutory defences, by seeking the conviction of the possessor of child pornography who merely suspected that he had downloaded such without seeing it and at (d) by placing a burden upon an originally innocent possessor to destroy the material when he became aware of it.  What would be the point in requiring the prosecutor to prove beyond a reasonable doubt that the accused knew the broad nature of the material and then providing the defence at (c)?  The mere fact that the factual situation envisaged at (d) involves the originally innocent possessor finding out what he in fact has is not, as was argued, an indication that full mens rea is required.

8. It is clear to me from construing sections 3 and 4 of the Ordinance that the word “knowingly” was deliberately omitted from the section creating the offence.  I do not need, and I have not therefore relied upon, what the Secretary of Security said to this effect in the resumed debate on the second reading of the Child Pornography Bill which took place on 23 January of 2002.

9. Mr Bruce SC, relied on the case of Atkins v Director of Prosecutions [2000]  2 CR App. Rep. 248.  He argued that on roughly analogous English legislation the case was authority for the proposition that knowledge of the nature of the material in question needed to be proved against an accused, or that it at least suggested this to be so.  I do not read the case so.  I read it as being authority for the proposition that a man cannot possess something which he does not know to exist.  It addresses the mental element of possession and not any further mens rea of the crime.

10. Let me now turn to the salient facts and matters, which, without looking at the contents of a disputed interview between the appellant and the police, can be summarised thus: 

(i)  The appellant owned and used a desktop computer which was kept on the dining table in his flat which he shared with a female cousin.  The cousin had nothing at all to do with the child pornography in this case. 

(ii) The child pornography was discovered on two hard disks, HD1 and HD2 inside the desktop computer and on two compact discs, CD1 and CD2, which were in a stack of 10 discs beside the computer. 

(iii) When the police entered the flat on 3 May 2004 the computer was running and only the defendant was present.  His cousin being out of Hong Kong. 

(iv) A total of 413 files were found which could be opened and viewed as an image on a computer, such images depicting child pornography as defined by the Ordinance.  There were 299 files in HD1, 37 on HD2, 35 on CD1, 42 on CD2.

(v) The child pornography related exclusively to male children.  The directories on both hard disks which contained the child pornography files also contained other homosexual pornographic material.  There was a total of 1,047 pornographic files on the hard disks.  The appellant was homosexual.

(vi) The hard drive, HD2, whilst located in the computer had been disconnected in the sense that it was not attached by its connecting cable.  This drive was last accessed on 14 August 2003 and it was roughly at this time that it was disconnected. 

(vii) The child pornography files on HD1 had been placed on this hard disk between September 2003 and May of 2004.  There had been access to the files from time to time, the last concerning the new folder which was viewed on the day before the police found the material and arrested the appellant in his flat.

(viii) The files on the compact discs had been burned using a compact disc writer of a type that was installed on the appellant’s computer called “Iomega Hotburn”, which was not a popular, but not uncommon piece of software.  The contents of those files demonstrated a link to files in what was called the “Long Folder” on HD1 by a common background, name format and logo. 

11. The appellant did not give evidence.  If the evidence had remained thus as I have summarised, then conviction would inevitably have resulted, for the inference that he controlled and knew what was on his computer had to be drawn and no defence was raised.

12. However, the appellant did call his cousin to give evidence.  She could not say how the child pornography came to exist on the computer or the discs.  What she did say was that the appellant was visited by friends in his flat, who were young men aged between 20 and 25; that young men sometimes worked there and used the computer; and that they had keys to the flat and could come and go in the absence of the accused.

13. Does this evidence stop the inference running?  The answer in my judgment, as in the magistrate’s judgment, is obviously no.  It may have been the case that some of those young men did have something to do with the pornography on the computer, but the idea that some or all of them wanted to, and managed to, place it there secretly, such that the appellant remained in ignorance of it, is simply unworthy of belief.

14. Where a strong prima facie case exists, as it existed here, being able to point to some merely theoretical possibility to explain that case away is simply not enough to provide a competing inference which would prevent the inference of guilt running.  Courts are concerned with common sense possibilities and not merely theoretical ones.

15. To convert the theoretical possibility of a third-party placing child pornography on your home computer without your knowledge or consent into something that may happen in the real world needed some further evidence.  As the magistrate pointed out none existed.

16. The election of the appellant not to give evidence resulted in there being no evidence from him, the owner and user of the computer, to explain or rebut the strong prima facie case.  The very night before the appellant’s arrest someone viewed on the appellant’s computer the contents of the directory that contained child pornography.  The idea that some third-party, wishing to enjoy pornography on someone else’s computer without their knowledge, left two compact discs containing child pornography beside that computer, only has to be stated to be dismissed.  Given the links between the contents of the computer hard disks and the contents of the compact discs, the case for dismissing the idea is even stronger.

17. The state of the evidence I have thus far considered is such that it makes me sure that the appellant knew full well the nature of the files in question.  However, given my view of the law, that is not the test.  I am sure that the appellant did possess child pornography, in that he controlled and knew of the existence of the files in question, and that there was nothing in this evidence that I have summarised so far sufficient to raise an issue that would support any of the statutory defences.

18. Of course, many files exist on any computer.  Many of them are concerned with how it does its job.  Most people never bother with such files.  Proof that the appellant was aware that files existed in his computer would not by itself be enough to prove the possession alleged here.  What the respondents have to demonstrate is that the appellant knew of the existence of the image files in question.  This they did, in my judgment, by overwhelming inference.

19. There are two further matters that do not go to the verdict on the single charge that the appellant faced, but to the extent of the files which the evidence proved he possessed.

20. The first matter concerns 33 files of child pornography that were contained in what was called the “Long Folder”.  The file path that led to these files in each case contained over 255 characters, the consequence of which was that the end subdirectory could not be opened using Windows Explorer.  It was thus argued that one could not be sure that the appellant knew of their existence. 

21. The evidence from a defence expert was that the long path name had been brought about as a result of moving two or more files together, but that one could separate the files by a simple click of the mouse if one knew the trick.  The trick was simply to drag the last subdirectory up one level as this then revealed the files it contained.

22. There was no evidence as to the extent of the appellant’s knowledge of, or skill in using computers.  What is significant, however, is that this long folder was created on the hard disk in September 2003 and it was last accessed on 2 December 2003.  That tells me that someone who wanted to look at this child pornography had the means to open the files.  I have already rejected as unrealistic the idea that third-parties were using the appellant’s computer to enjoy pornography without his knowledge.  In the absence of any further evidence the only inference is that it was this appellant who opened the files either by himself alone or with another.  I am sure that the appellant possessed these 33 files.  The fact that I do not know why such a device was not used to hide other pornographic files raised no doubt in my mind and merely reflects that the explanation is one that the appellant keeps secret.

23. The second matter concerns the 37 files of child pornography that were found on the disconnected hard disk, HD2.  This disc was disconnected in August or September of 2003 and there had been no access since.  The Child Pornography Ordinance came into operation on 19 December 2003.

24. Possession is not dependant upon memory, see R v Martindale 84 Cr. App. Rep. 31.  On the evidence before me I have no doubt that the appellant once possessed these files.  Forgetting their existence would be no defence.  However, if he believed that they had ceased to exist he would not remain in possession of them.  So the question for me is what finding to make concerning the impact the disconnection had on the appellant’s knowledge of the continued existence of the files.  The burden is on the prosecution to prove possession beyond a reasonable doubt, which in this respect means proving that he knew the files still existed.  The evidence available does not, in my judgment, discharge that burden.  It may very well be that if the appellant had addressed his mind to the issue and thought about it carefully that he would have known that disconnection did not automatically involve destruction.  However, I cannot be sure that was the case.  The magistrate made no finding in this regard and I am as well placed as he was to make the judgment.

25. It is thus that I uphold the conviction, although my finding is possession of 376 files of child pornography and not 413.  The order of this court will thus read “Appeal dismissed.  Order of conviction upheld as to 376 files of child pornography.”

26. Let me turn to one last topic which concerns the admissibility of a video recorded interview between the appellant and the police.  As will be apparent from what I have said thus far, the respondents were able to prove their case without reference to this evidence.

27. The objection to its admissibility was based on allegations of threats and the promise of bail.  The appellant gave evidence in support of his allegations.  In particular he claimed that he said what he did because he was promised bail.  The lady police inspector denied the allegations, as did a police constable who was also said to have induced the appellant to speak involuntarily.

28. The resolution of the issue depended upon the credibility of the witnesses.  The magistrate believed the inspector and the constable and disbelieved the appellant.  He made findings of fact to the effect that no inducement was held out, that the appellant did not speak involuntarily due to any actions of the police, whether deliberate or unintentional.

29. Nothing argued before me today makes me doubt those findings.  The appellant is at liberty to reargue the matter before me, but must realise that he faces an uphill task in doing so as the magistrate was in a far better position to judge the matter than I am, having seen and heard the witnesses.  If he could demonstrate some error by the magistrate in this regard he might persuade me to a different conclusion, but the fact is that no error was properly demonstrated to me.

30. Mr Bruce SC, no doubt appreciating the difficulty of revisiting the issue of credibility, takes the point that even if the appellant failed to raised a doubt on direct inducement the evidence revealed that the police officers had not done enough to dispel the impression the appellant would have had to the effect that bail was to be expected but only after an interview had been given.  This was based on the fact that the inspector agreed that the appellant was anxious to regain his freedom after arrest to attend to his business and that bail was discussed and that the accused was taken before the interview to an ATM machine near police headquarters to withdraw money to put up for his bail.

31. The magistrate dealt with the point in this way:

            “The accused agrees that he was given to understand that in the course of the investigation process there must be an interview and bail would only be considered at the end of the process.  It is clear evidence that he intended to reach that stage of bail as quickly as possible.  This eagerness only concerned time and had nothing to do with confession.  The accused has clearly indicated in the witness-box that he was never instructed on what he should say or anything in relation to the interview at all.”

The magistrate also found that his treatment by the inspector had been both

fair and civil.  It was the case that there was a proper caution at the commencement of the video recorded interview, repeating a caution that had been given upon arrest.

32. The short answer to the point is that the magistrate found that the appellant did not have any self generated state of mind such that his answers in the interview were involuntary.  Even if one disregards the findings hostile to the defendant on the special issue, the evidence was not such as to leave me in any doubt as to the voluntary nature of the interview.  Informing an accused of the usual procedure and allowing him to put himself in funds is not the same thing as making bail dependent upon answering questions.  If a man wishes to assert that notwithstanding the difference between the two he confused them then he must give evidence and be believed at least to the extent of raising a doubt on the issue.  This appellant did the former, but failed in the latter.  All I need to add is that in the circumstances such as these there is no obligation on the police to adapt the words of the usual caution along the lines that even though the usual procedure had been explained, progress towards the stage of bail is not dependent upon answering any questions.

33. The interview was mixed in its nature, containing answers that damaged the appellant and answers that sought to put matters in a better light.  The damage far outweighed any advantage.  The respondent’s written submissions at page 4 to 6 conveniently summarises the contents of the interview and I will not repeat them.

34. I am sure the magistrate was right to admit the interview.  In my judgment the self-serving parts of the interview merit no weight, except in so far as they related to treating the replaced hard disk as being something dead and gone.  That had the ring of truth.  The rest did not.  I have read the transcript which conveyed to me a very strong impression of a man being both shifty and evasive, who did not have the effrontery to make the implausible claim that it was all the work of others but who was prepared to do his best to minimise his involvement and knowledge without regard for the truth, changing his ground and advancing obviously unrealistic explanations on occasion.

35. The self-serving claims in the interview did not, in my judgment, amount to sufficient evidence to raise an issue on the statutory defences at subsections 4(3)(c) and 4(3)(e) of the Ordinance.  Even if they do I am in no doubt, for the reasons given earlier, that it was the appellant who enjoyed the files in questions and that the weight of inferential evidence to this effect denied him any defences.

36. The only self-serving claim which I need mention in particular is that the appellant claimed that he only downloaded pornography from sites that warranted its images depicted persons over the age of 18 years.  Does this raise the statutory defence at section 4(3)(e) in relation to any of the 376 files of child pornography that I find the appellant possessed?  I judge the answer to that is no.  Such an unsworn, untested, blanket assertion of general practice is not, in my view, sufficient evidence to raise an issue that this appellant believed that any of those children depicted in his files was not a child.  Even if I am wrong in that judgment, I have no doubt that the weight of the respondent’s evidence proves the contrary beyond reasonable doubt as I have no doubt on the evidence that the appellant stored and accessed the material for his enjoyment and anyone looking at the images in question would see immediately that children were involved.  Further, it was conceded that 261 of the child pornography files arrived as attachments to ICQ communications and that the claim to downloading only from age warranted sites would have no application to them.

37. The appeal against conviction is dismissed.