HKSAR v. KWOK PO LUN

CACC 164/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 2013

(ON APPEAL FROM DCCC NO. 64 OF 2012)

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J U D G M E N T

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Introduction

1.  The applicant was tried in the District Court before District Judge Dufton (“the judge”) on a Charge Sheet containing two charges.  The first charge was possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579 and the second charge was publishing child pornography, contrary to section 3(2) of the same Ordinance. On 19 March 2013 the applicant was convicted by the judge and on 19 April 2013 sentenced on the first charge to 3 years and 9 months’ imprisonment and on the second charge to 4 years and 6 months’ imprisonment.  The sentences were ordered to be served concurrently with one another and so the total sentence imposed upon the applicant was 4 years and 6 months’ imprisonment.

2.  The applicant applies for leave to appeal both his convictions and his sentences.

The Trial

3.  It was the prosecution case that on 15 April 2010 the police executed a search warrant at the residence of the applicant and seized from a bedroom there a computer which had stored on its hard disk 40,954 images and 510 films containing child pornography, stored on the computers’ hard disk. 

4.  The issues in the trial were quite narrow.  They were simply whether the computer and its contents could be linked to the applicant and secondly whether it could be showed that he had knowledge of the child pornography that was stored on it and whether it had been proven that he intended to exercise control over it.  Essentially, the dispute related to the possession element of the offence in respect of the first charge and the publishing element of the offence in respect of the second charge.  It was not disputed that child pornography images and films were stored in the computer and the particulars of the charge referring to the number of images and films was, in fact, the subject of an Admitted Fact.

5.  The computer was made the subject of an expert computer forensic examination and it was the prosecution case based upon the expert evidence from this examination, that on a day unknown in 2010, the applicant had published 9 images and 497 films containing child pornography that had been stored inside this computer’s hard disk.  The prosecution evidence was essentially expert evidence relating to the operation of the computer and the material that was stored on it and the programmes used with it.

6.  The defence challenged the police expert witness on the basis that, being a part of the investigating team, he lacked independence.  The judge found that he was not part of the investigation team but even if he was this would be no bar to him being called as an expert witness and that the extent of his independence only went to the weight of his evidence, not to its admissibility.

7.  It was the prosecution case that the computer containing child pornography was found in the applicant’s bedroom and that the applicant was the sole user of it.  One of the police witnesses testified that the applicant was seen walking out of the bedroom in which the computer was found and this piece of evidence was not challenged by the defence.  But, what was more significant was that the computer on which child pornography was found, had two valid user accounts, one described as “Alan” and the other as “Guest”.  But, it was only the account “Alan” that was activated to accept the password logon.  The applicant uses the Christian name “Alan” and it is, in fact, part of his work e-mail address.  In addition, the police expert found contained within this computer other files relating to the applicant by his Chinese name Kwok Po Lun and to the person known as “Alan”.  From this evidence the judge drew the inference that the applicant is the person “Alan” who was using the computer and that the bedroom in which this computer was stored was the applicant’s bedroom.

8.  The defence case was that the evidence of the location of the computer was unreliable, that it had not been proven that the room from which the computer was allegedly sized was the applicant’s bedroom and that the court could not rule out the possibility that others, such as the applicant’s parents who also resided in the flat, might have accessed the computer for their own purpose.  The defence also queried whether third parties could have secretly caused the child pornography to be stored in the computer either by entering the applicant’s flat to gain physical access to this computer, or by remotely accessing it or by hacking into it.  The defence also suggested that because of the police’s poor level of security in storing the computer, it was possible that the child pornography could have been installed in the computer after it had been seized.

9.  The applicant elected not to give evidence but called his own computer expert, Dr Ajay Kumar whose report was also read pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221 and adopted by him as part of his evidence-in-chief.  The judge was satisfied that Dr Kumar had an in-depth knowledge of computer operating systems and could give expert evidence on computer technology but that the assistance he could provide to the court was limited by the fact that he had not conducted a physical examination of the applicant’s computer.

The Reasons for Verdict

10.  The judge addressed all the possible scenarios raised by the applicant that might account for the child pornography being installed on the computer other than by the actions of the applicant.  He accepted that there were surprising aspects in relation to the police handling and storage of the computer but he was, nevertheless, satisfied that the only inference that could be drawn from the evidence as a whole was that the child pornography was on the computer at the time of its seizure.  He dismissed as inherently improbable that someone would have downloaded, copied or by other means planted this large quantity of child pornography on the computer whilst it was in police custody without any police officer noticing what was happening.  He carefully considered all the other scenarios raised by the defence and provided detailed reasons for rejecting them before expressing himself satisfied so that he was sure that the only person that had physical access to the computer was the applicant. 

11.  The judge then considered the evidence in relation to the applicant having accessed the child pornography and again found that by relying on the evidence of the police expert that he could be satisfied that the applicant did, in fact, access the child pornography.

12.  In respect of the second charge of distribution, the judge noted the presence of a file sharing programme that was capable of uploading and downloading the child pornography.  There was also evidence that there had been a number of requests for uploading and that, in fact, a total amount of 2.92 MB had been transmitted out by this file sharing programme.

13.  The judge did specifically mention that in order to correctly and fully understand the evidence of the experts he found it necessary to, at times, engage in lengthy questioning of them.

The Reasons for Sentence

14.  The judge referred to the Court of Appeal guideline case of Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519 and that the parties had agreed the classification of the child pornography in this case was as follows:

Level 1 - 15,533 images and 99 films

Level 2 - 9,131 images and 88 films

Level 3 – 8,585 images and 111 films

Level 4 - 7,705 images and 212 films

15.  The judge discussed in detail other relevant case authorities, the sentencing principles and the application of those principles to the case before him.  He then concluded in respect of the first charge:

“Taking into account the total quantity of images and films; the number of images and films at Level 4; the nature of those images; the intention to publish; and that a substantial quantity are cartoons, I am satisfied the proper sentence after trial is 4 years imprisonment.” [1]

16.  In respect of the second charge the judge said he took into account that the applicant was engaged in only non-commercial distribution but said this was not significant in the context of child pornography.  He concluded:

“Taking into account the number of films was just under 500; the manner of distribution; and the length and nature of the films, with a substantial amount being Level 4, I am satisfied the proper sentence after trial is 4 years and 9 months imprisonment.” [2]

17.  He then discounted these starting points by 1 month to allow for the applicant’s prior good character and 2 months for the delay in being brought to trial.  This resulted in final sentences of 3 years 9 months’ imprisonment for Charge 1 and 4 years 6 months’ imprisonment for Charge 2 which he ordered to be served concurrently.

The Grounds of Appeal

18.  The applicant is unrepresented and has not filed any grounds of appeal.  He sought, and was granted, a number of adjournments in order to obtain legal representation and to this end relied on the assistance of a friend.  However, ultimately all their efforts were unsuccessful.  Nevertheless, he has set out his complaints and articulated the reasons why he says his appeal should be allowed in a letter to the court dated 13 May 2013 and later a more detailed written submission.  After the hearing of the appeal and before the handing down of judgment he again wrote to the court asking that it take into account the contents of a letter written by the friend who had been helping him in his efforts to obtain legal representation. 

19.  In his letter of 13 May 2013 the applicant complained that there was no proper report prepared by the expert and the judge asked too many questions in the course of the trial therefore revealing a partiality to the prosecution.  In respect of sentence he simply said that he felt his sentence was excessive “compared to other cases of the same nature”.

20.  In his written submission the applicant set out four complaints, all of which relate in one way or another to the fact that no child pornography was found in his computer when it was examined at his home and the fact that after seizure by the police there was a period when the computer was not stored properly by them.  His first complaint refers to the fact that when the police seized the computer they found nothing on it but focuses more on the police’s failure to store it properly as an exhibit.  In support of his criticism of their storage of the computer he refers to the relevant Police General Orders dealing with the proper handling of seized property and argues that the possibility that the computer had been tampered with whilst in police custody cannot be ruled out.  

21.  In his second complaint the applicant emphasized that no child pornography had been found on his computer when it was seized and referred to the statements of the police officers that checked his computer at his house for child pornography but found none at that time.  He argued that this fact and the subsequent failure by the police to properly store the computer should have been taken into account by the court in deciding whether to accept the computer as evidence.

22.  The applicant’s third complaint is effectively a repeat of the 1^st and 2^nd complaints and adds nothing new to them. 

23.  Likewise in respect of the applicant’s fourth complaint which focuses on the possibility of the computer being tampered with whilst in police custody.  He argues that the integrity and loyalty of police officers cannot be assumed and on this issue the applicant also asked me to have regard to media reports of serious misconduct by police officers unconnected with this case.

Discussion

24.  Dealing first with the applicant’s detailed written submission, it is clear that all the complaints raised by the applicant were ventilated at his trial and addressed by the judge in his Reasons for Verdict.  The judge was alive to the issue of the failure of the police to properly store the computer.  He took this failure into account when addressing the possibility that because of this failure a third party may have accessed the computer whilst it was being insecurely stored and installed the child pornography material on it.  I do not agree that the judge did not adequately deal with this issue and can detect no error by him in his reasoning or conclusion.  He was perfectly entitled to conclude that notwithstanding the procedural errors by the police in the storage of the computer it was “inherently improbable that someone could have downloaded copied or by other means planted such a large quantity of suspected child pornography on the computer without anyone noticing what what was happening.”  I do not regard this first ground of appeal as reasonably arguable. 

25.  The second ground of appeal concerns the failure of the police to detect child pornography in the computer when they checked it at the applicant’s flat at the time of seizure.  An explanation for this failure was provided by the police and it concerned their use of out-of-date forensic software.  This explanation was accepted by the judge and, once accepted, the anomaly was then resolved.  I can find no error in the judge’s decision to accept this evidence and in my view his acceptance of it cannot be said to be plainly wrong.  I do not regard the second ground of appeal as reasonably arguable. 

26.  For the reasons already given I do not find the third ground of appeal reasonably arguable. 

27.  The fourth ground of appeal is really a repeat of the earlier grounds but adds to them by providing what the applicant says is a further reason for concluding that the computer might have been interfered with when it was in police custody.  This further reason was that there had been in the past various media reports of police misconduct.  However, none of the misconduct relied upon by the applicant is relevant to the scenario he was advancing.  Its only possible relevance is to show that in assessing the credibility of police witnesses a judicial officer should not start with any presumption favourable to the officer’s honesty or credibility.  Such a principle is fundamental and courts are well aware that there can be a temptation by law enforcement officers to which, regrettably, some may succumb, to assist their investigation by fabricating evidence.  But there was nothing to point to this having happened in the present case.  Nor is there any hint that in the judge’s Reasons for Verdict that he has analysed the evidence of the police officers incorrectly or in a way inconsistent with the principle I have described.  I do not regard the fourth ground of appeal as reasonably arguable.

28.  As to the matters raised in the letter of 13 May 2013 I can likewise find no merit in them.  Although there was no expert report, the evidence of the expert was set out in a series of witness statements.  How the expert’s evidence was compiled is irrelevant; what is relevant is that the defence had proper notice of it in order to prepare themselves for trial.  The failure of the prosecution to compile a proper expert report was addressed by the judge in some detail and he explained why that failure did not cause him to have any doubts about the evidence of the expert.

29.  The other matter raised was the interventions by the judge.  I do not have the full transcript of the trial and so have not been able to examine each intervention to see whether individually or circumstantially they had the effect of denying the applicant a fair trial.  However, I bear in mind two things.  The first is that in the District Court the judge is the trier of fact and it is not at all unusual that in the performance of this function a judge asks questions to clarify matters raised in evidence in order to get a better, accurate and more complete understanding of the evidence.  This is especially so in respect of expert evidence.  An expert is called to give evidence because he is an expert and because the evidence he gives relates to a recognized field of expertise, knowledge by the court of which may be lacking.  He is called to assist the court.  It is hardly surprising that as a trier of fact seeks to understand such evidence it engages in substantial questioning of the expert. It is the court who knows on what areas it requires most assistance and on what areas it is having some difficulty in comprehending the expert evidence.  I can finding nothing in the judge’s Reasons for Verdict to suggest any partiality towards the prosecution. 

30.  Finally I should refer to the letter written to me by the applicant’s friend.  It contains information relating to the ability of a third party to tamper, undetected, with the computer whilst it was in police custody.  In it the friend writes:

“As long as the tower case of the computer can be opened, it is possible to boot up the computer without causing any damage to the tamper-proof label stuck on the power button. If booting up is okay, one can change the system settings of the computer. A Wi-Fi network would allow one to download any files on the internet and such change in the system would make the time of the files created, access and last modified different. For example, the access time of a file downloaded on 1 January 2014 could be modified to a date earlier or later.”

31.  The police evidence, which the judge accepted, was to the effect that an anti-tamper label was placed on the power button of the computer which would prevent anyone from being able to switch on the computer without leaving a trace of their actions.  The new evidence in the applicant’s friend’s letter provides an alternative method of turning on the computer other than by the tamper protected power button.

32.  As I do not have a transcript of the evidence adduced in the trial I do not know whether this possibility was explored in cross-examination or referred to in submissions.  I shall assume for present purposes that it was not.  For it to be raised on appeal for the first time the applicant would have to satisfy the requirements of section 83V of the Criminal Procedure Ordinance, Cap 221.  I am not satisfied that he has a reasonable prospect of so doing.  Nor do I think that even if this material was before the trial judge it would have made any difference to his conclusion on the issue of a third party tampering with the computer whilst it was in police custody.  The judge did not base his conclusion on the physical impossibility of such tampering being able to take place but rather on the inherent improbability of it occurring.

33.  In respect of the appeal against sentence I can detect no error in the approach of the judge to his assessment of sentence or in his application of legal principle.  He had regard to and correctly applied the relevant sentencing case law and, in my view, his final sentences cannot be said to be manifestly excessive.  I do not regard the ground of appeal against sentence as reasonably arguable.

34.  I have also considered the judge’s Reasons for Sentence and can detect no error in them.  The sentence was determined in accordance with legal principles and is not excessive.

Conclusion

35.  For the reasons given I find no merit in either the application for leave to appeal against convictions or the application for leave to appeal against sentences and both are refused. 

[1] Page 64, paragraph 33 of the Appeal Bundle.

[2] Page 67, paragraph 42 of the Appeal Bundle.