HKSAR v. REESE ROBERT MILES DAVID

CACC 37/2022 [2024] HKCA 468

On appeal from [2022] HKDC 147 and [2022] HKDC 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 37 OF 2022

(ON APPEAL FROM DCCC NO 936 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

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

The application for leave to appeal

2.  On 18 March 2022, the appellant applied for leave to appeal against conviction and sentence. He did not set out any grounds of appeal in relation to either application because he was unable to obtain legal advice. He merely expressed the wish to apply for bail.

3.  On 27 April 2022, Mr Andrew Raffell, for the appellant, filed perfected grounds of appeal against conviction. On 28 April 2022, an application for bail was refused by the Single Judge.[1] Mr Raffell was subsequently replaced by Mr David Boyton, who filed perfected grounds of appeal against sentence on 2 June 2022 and amended perfected grounds of appeal against conviction on 27 June 2022.

4.  At the leave hearing on 25 July 2022, Mr Boyton advanced two grounds of appeal against conviction. Ground 1 averred that the Judge erred in failing to consider whether the evidence of the two prosecution experts supported or raised the statutory defence that on 22 November 2016, the appellant may not have seen the child pornography on his desktop computer, and may not have known, nor suspected, it to be child pornography. Ground 2 complained that the Judge went against the weight of the evidence by finding the appellant’s references to pornography in his out-of-court statements meant child pornography, and that he was apologising for possessing child pornography. He advanced one ground of appeal against sentence. He complained that the Judge failed to take into account, as a mitigating factor, that the eMule programme, which the appellant used to download pornography, may have supported the appellant’s testimony, albeit rejected, that he did not know of “all” the child pornography files in his desktop computer.

5.  On 23 September 2022, the Single Judge handed down judgment, granting the appellant leave to appeal against conviction and sentence on the grounds advanced on his behalf.[2]

6.  On 14 December 2022, the appellant was granted bail pending appeal by the Single Judge.[3]

The offence provision

7.  Section 3 of the Ordinance sets out a range of offences relating to child pornography. Under s.3(3), a person commits an offence “who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography)”, and upon conviction on indictment, the person is liable to a fine of $1,000,000 and to imprisonment for 5 years.

8.  Section 2(1) of the Ordinance provides that a “child” is a person under the age of 16 years, and defines child pornography and pornographic depiction in the following terms:

“child pornography (兒童色情物品) means:

(a) a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child, whether it is made or generated by electronic or any other means, whether or not it is a depiction of a real person and whether or not it has been modified; or

(b) anything that incorporates a photograph, film, image or depiction referred to in paragraph (a),

and includes data stored in a form that is capable of conversion into a photograph, film, image or depiction referred to in paragraph (a) and anything containing such data;

…

pornographic depiction (色情描劃) means:

(a) a visual depiction that depicts a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or

(b) a visual depiction that depicts, in a sexual manner or context, the genitals or anal region of a person or the breast of a female person,

but, for the avoidance of doubt, a depiction for a genuine family purpose does not, merely because it depicts any part of the body referred to in paragraph (b), fall within that paragraph;”

9.  Section 4 of the Ordinance sets out defences to a charge under s.3, which in so far as material to a charge under s.3(3) provides:

“(3) It is a defence to a charge under section 3(3) for the defendant to establish—

(a) that his possession of the child pornography was for a genuine educational, scientific or medical purpose;

(b) that his possession of the child pornography otherwise served the public good and did not extend beyond what served the public good;

(c) that he had not seen the child pornography and did not know, nor did he suspect, it to be child pornography;

(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; or

(e) that he believed that the person pornographically depicted in the child pornography was not a child when originally depicted and that the person was not depicted as a child.

(4) Unless subsection (5) applies, a defendant is to establish any fact that needs to be established for the purpose of a defence under this section on the balance of probabilities.

(5) A defendant charged with an offence under section 3(3) is to be taken to have established any fact that needs to be established for the purpose of a defence under subsection (3)(c), (d) or (e) 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.”

The prosecution case

10.  On the morning of 22 November 2016, the police conducted a search of the appellant’s residence pursuant to a search warrant. They seized from the living room a black desktop computer (“the computer”). After a preliminary examination, they suspected that child pornography had been stored in the computer. The appellant was arrested and cautioned for possession of child pornography. In response, he said, “I downloaded the pornography videos, but I rarely watched them. Give me a chance.”[4] Later the same day, in a video recorded interview, the appellant admitted, amongst other things, that the computer belonged to him; that he had downloaded pornographic videos by using a programme called eMule; that he started downloading pornographic videos a few years earlier when he had a lot of spare time and was under pressure, stress and depression; that he knew what he had downloaded but did not have much time to watch any of them except for some; and that it was a habit he could not control, which he knew was wrong and was sorry. He said he had unknowingly downloaded child pornographic videos by using the eMule programme. There was, however, an issue at trial whether he admitted in his video recorded interview that he knew he had downloaded child pornography.

11.  It was admitted in evidence that on 22 November 2016, 12,275 photographs and about 2,793 videos were stored in the appellant’s computer, which included 4,738 photographs and 931 video clips, containing the child pornography particularised in the charge.

12.  The prosecution case focused on proving that the appellant had accessed and, therefore, possessed child pornography.

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

The expert evidence

14.  There was an issue regarding PW8’s analysis of the appellant’s computer. The Judge noted in his reasons that PW8’s explanation of technical matters was, at times, not very clear and on occasions, he needed to revise his evidence. As a result, the Judge had to warn himself about relying on his evidence. He said he approached PW8’s evidence “with care before placing any reliance on his evidence”.[5]

15.  PW8 analysed 2,572 pornographic photographs, videos and zip files from the computer to see whether any of the videos had been opened and if there were records of files being downloaded by using the eMule programme. The computer name was DAVID-PC and the administrator was also David with the path C:\Users\David.[6] One of the Christian names of the appellant was “David”.

16.  PW8 produced Annexes 1 to 5 in respect of his analysis of these files. He recorded the title of each item in Annex 1, and it is apparent in a significant number of them that they were concerned with preteen pornography. He sought to show that some of the files had been opened by examining relevant times relating to the individual file, which he set out in Annexes 1 to 3.[7] The Judge explained the findings of PW8 as follows:[8]

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

17.  However, PW8’s methodology in analysing the content of appellant’s computer was shown to be unreliable and incomplete. He was unable to show whether the child pornography files had been opened. As a result, the Judge did not rely on PW8’s analysis as set out in Annexes 1 to 3. He said:[9]

“267. Having carefully considered the evidence of Sgt 34232 and WPC 15499 summarised earlier, in particular the testimony of Sgt 34232 that the access time in Annex 1 may be affected in three different ways; Sgt 34232 agreed in cross-examination that from just looking at the access time in Annex 1 it was not possible to tell if any of the files had been opened or viewed by a human being; the playing of a video did not change the modified time and that he was not clear whether the antivirus programme installed on the computer could have accessed the files when scanning for viruses; Annex 2 has no child pornography files[10] and that Sgt 34232 was not clear why in Annex 3 the modified time in most files was later than the access time and that some programme might have opened the jump lists, I do not in reaching my verdict rely on the modified and access times in Annexes 1-3 to show that the defendant had viewed any of the child pornography.”

18.  Annex 4 was a list of 30 keywords used to search the eMule programme. By using the search keyword “pthc” in the eMule programme, PW8 explained that there were many results from which the user could select video files to download.[11] The initials “pthc” stood for “preteen hardcore”. However, he could not show the date of any searches or the number of any searches. All he could show was that there were four keywords incorporating “pthc”.

19.  Annex 5 showed that 4,227 files had been downloaded using the eMule programme.

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

21.  Whilst the Judge rejected PW8’s analysis in relation to the access of certain files on the computer, Mr Boyton contends that his evidence gave “some credence” to the appellant’s case that he may not have seen or known of the child pornography on his computer. He complains that the Judge had inappropriately disregarded this evidence. We will discuss this matter further, but we do not agree. PW8 was unable to show whether the child pornography files on the appellant’s computer had been accessed or viewed, and this simply meant there was no evidence from PW8 on this aspect of his analysis. The key issue was whether the appellant knew there was child pornography stored on his computer. PW8 was able to show that there was an array of child pornography stored on his computer and that there were keyword searches directed to the subject of preteen.

The appellant’s admissions

22.  In contesting the charge, the appellant testified that he did not knowingly download child pornography, only adult pornography and had not seen the child pornography or suspected there was child pornography on his computer. He explained that he said this in his caution statements and did not admit that he knowingly downloaded child pornography. He said he was in the habit of downloading in bulk. He would select all the files in the search window and download it all. Only on rare occasions would he go into the incoming folder and enter the first file, but would not look at it.[12] This was in accordance with the statutory defence that he had not seen the child pornography and did not know, nor did he suspect, it to be child pornography. However, the Judge found that the appellant, by his statement under caution and answers in his video recorded interview, admitted that he had viewed the child pornography, and that when he said he was sorry, he was apologising for downloading child pornography and not as he testified for searching adult pornography.[13]

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

24.  Mr Pierre Lui, for the respondent, argues that the appellant answered questions in the context of child pornography having been found on his computer. He refers to answers by the appellant in which he submits the appellant acknowledged that he had downloaded the child pornography.[14] However, there were answers given by the appellant inconsistent with this submission. In one of his answers, the appellant said:[15]

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

25.  The appellant also insisted he had no intention to download or access child pornography:[16]

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

26.  The appellant later explained:[17]

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

27.  The appellant denied that he paid for any child pornography; re-posted any child pornography; saved child pornography on other devices; printed child pornography; or shared child pornography.[18] He said that if he saw child pornography he would delete it, but he did not know there were underage children involved until he looked at the material.[19] Against the appellant’s claim, was the fact that a large quantity of child pornography was on his computer that had not been deleted.

The basis of the conviction

28.  The Judge directed himself that on a charge under s.3(3) of the Ordinance, the prosecution had to prove beyond reasonable doubt that the photographs and video clips particularised in the charge were child pornography within the definition of s.2(1) and that the appellant was in possession of the child pornography.[20] He stated that possession involved the prosecution proving that the appellant had control of and knowledge of the existence of the photographs and video clips on the computer but not that the appellant knew they were child pornography or that he had opened the files[21]: HKSAR v Justin Yves Herbonnet [22]; Atkins v DPP [23]; McMurdo v HM Advocate [24]; and R v Okoro (No 3) [25]. He noted that if the prosecution proved beyond reasonable doubt that the appellant was in possession of the child pornography, the appellant may rely on any of the statutory defences in s.4 of the Ordinance.[26]

29.  The Judge rejected the appellant’s evidence and was of the view that the appellant acknowledged in his out-of-court statements that he had downloaded child pornography onto his computer and was sorry for doing so. The Judge said:[27]

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

…

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

300. I do not find credible the defendant's evidence that he never imagined any of the files were child pornography and did not suspect any of the files to be child pornography. In the video recorded interview, the defendant said he used search words like ‘Jap’ (see counters 352-355). In Annex 1 ‘Jap’ is found in the file name of at least 108 child pornographic videos of which the names of 51 files specifically refer to children under the age of 16.[28]”

30.  The Judge agreed with the prosecutor’s submission that given the frequency of the English names amongst the files downloaded with references to children or preteens, it could not have escaped the user that child pornography was present on the computer, and he was therefore satisfied to the requisite standard that the appellant knew or suspected child pornography was on the computer and that he had viewed the child pornography.[29]

Discussion

31.  Before we turn to consider the grounds for which leave has been given, it is appropriate that we examine the legal framework of the offence provision.

The legal framework

32.  The underlying policy of the law against child pornography is to stop and eliminate the demand for this type of material, which leads to the grotesque exploitation and degradation of children. This is an important consideration when examining the structure and form of the relevant offence provisions.

33.  On a charge under s.3(3), the prosecution must prove beyond reasonable doubt that the prohibited article or material is child pornography within the definition of s.2(1), and that the defendant was in possession of the child pornography. The prosecution has to prove that the prohibited article or material was within the defendant’s custody or control but it does not have to prove knowledge of the quality or content of the prohibited article or material , instead that issue is dealt with by the statutory defences under s.4(3) that limit and define situations where the defendant could avoid conviction by providing for him to establish, amongst other things, at (3)(a) that his possession “was for a genuine educational, scientific or medical purpose”; (3)(b) that his possession “otherwise served the public good and did not extend beyond what served the public good”; (3)(c) that he “had not seen the child pornography and did not know, nor did he suspect” it to be child pornography; (3)(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”; and (3)(e) that he “believed that the person pornographically depicted in the child pornography was not a child when originally depicted and that the person was not depicted as a child”.

34.  We wish to elaborate on the mens rea element in the offence under s.3(3). The offence provision is silent as to the mental requirement, and in such circumstances, the presumption of mens rea would apply. However, applying the principles stated by the Court of Final Appeal in Hin Lin Yee v HKSAR [30] and Kulemesin v HKSAR [31], the provision of the statutory defences in s.4(3) would place the mental requirement in the fourth alternative. The fourth alternative regime provides that the presumption of mens rea has been displaced and that the defendant is confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second alternative (need not prove mens rea but may have acted or omitted to act with the honest and reasonable belief could do so) and third alternative ( mens rea displaced but can prove on a balance of probabilities that he acted or omitted to act in the honest and reasonable belief could do so).

35.  In similar provisions in the United Kingdom, the Court of Appeal in R v Okoro (No 3) [32] held that “possession” did not require the defendant to have knowledge of, or to have seen, the content of the prohibited material, since that issue was dealt with under the statutory defences. In that case, the defendant’s telephone contained images in a password-protected vault application for which he was charged with possession of an indecent photograph of the child[33] and possessing extreme pornographic images[34]. The defendant relied on the defences under the relevant provisions that he had either not seen the images or did not know their content or that the images had been sent to him without any prior request and that he had not kept them for an unreasonable time.

36.  The Court held that possession of digital images required proof by the prosecution that the defendant was aware of the existence of relevant digital files or package of files, which he had the capacity to access; that possession did not require the defendant to have knowledge of, or to have seen, the content of those images, since that issue was dealt with under the statutory defences; that, where a defendant claimed that unsolicited digital images had been sent to him electronically by others and it could not be established that he had actively downloaded the digital images, possession would be established where it was shown (i) that the images were in his custody or control so that he was capable of accessing them, which element was always likely to be fulfilled, and (ii) that he had to have known that he possessed an image or a group of images, proof of which would depend on whether he knew he had received an image or images.

37.  In that case, the trial judge had directed the jury that the defendant had admitted that he had possession of the images in the sense that they were stored on his telephone, and that the only issue was whether he had established the statutory defences which were available to him. The Court held that since the defendant accepted that he knew that he had received the images, which had been stored on his telephone and that he could have accessed them had he so wished, the trial judge had been correct to direct the jury that he had admitted possession of the images.

38.  The Court noted that in either statute, “possession” was not defined. This is also the case with the Hong Kong statute. The Court was of the view that the legal requirements for possession were the same under both provisions, and followed the English Court of Appeal’s judgment in R v Cheung (Ping Chen) [35], that the prosecution had to establish to the criminal standard that the defendant had knowledge of the existence of the “things” that were in his custody or control, but did not have to prove the defendant’s knowledge of the quality, or contents, of the thing. The defendant’s knowledge of the contents could be addressed through the statutory defences.[36]

39.  The Court observed that it could not be the law that a defendant must be shown to be aware of all the relevant content of a digital file on his device, for if that were necessary the statutory defences would be redundant.[37] The Court held that the offence provision required proof by the prosecution of possession of the pornography or images of child abuse, as a preliminary step before the burden of proof shifts to the defendant, to establish the statutory defences. The Court noted that a defendant could not be convicted in relation to material of which he was “genuinely, totally unaware”, nor could a defendant be said to be in possession of a digital file if it was, in practical terms, impossible for him to access. However, as pointed out by the Court, possession is established if the defendant can be shown to have been aware of a relevant digital file or package of files that he had the capacity to access, even if he could not be shown to have opened or scrutinised the material.[38] The Court said:

“46. It follows that in this case, two elements had to be made out in order for an individual to have possession: (1) the images must have been within the defendant’s custody or control, i.e. so that he was capable of accessing them; and (2) he must have known that he possessed an image or a group of images. It is clear that knowledge of the content of those images is not required to make out the basic ingredients of the offence; instead that issue is dealt with by the statutory defences.”

40.  Before any question of the statutory defence could arise, the prosecution had to establish to the criminal standard of proof that the defendant had custody or control and knowledge of the presence of the prohibited article or material. The prosecution do not have to prove that the defendant knew that the prohibited article or material, which was to his knowledge in his custody or control, had the requisite quality giving rise to the offence, in this case, that the appellant’s computer contained child pornography. Otherwise, the defences under s.4(3) would be otiose. The usual full mens rea requirement was displaced by the statutory defences in s.4(3).

41.  As provided by s.4(4), a defendant is to establish any fact that needs to be established for the purpose of a defence under s.4 on the balance of probabilities. However, by s.4(5), a defendant charged with an offence under s.3(3) is taken to have established any fact that needs to be established for the purpose of a defence under ss.3(c), (d) or (e), 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.

42.  It is sufficient for the prosecution to prove to the requisite criminal standard that the defendant had custody and knowledge of the prohibited article or material, without proving knowledge of child pornography. It is then a matter for the defendant to prove to the requisite standard as specified in ss.4(4) or 4(5) any of the defences in addressing knowledge of the child pornography. If the defendant has established the defence to the requisite standard, it is then for the prosecution to rebut the defence beyond reasonable doubt.

43.  Deputy Judge Line in HKSAR v Justin Yves Herbonnet succinctly explained the practical effect of the defences to a charge of possessing child pornography as follows:[39]

“The existence of the defences reveals a concern for a 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 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 [the defence at (d)].”

The appellant’s defence

44.  In the present case, the appellant relied on the defence in s.4(3)(c) that he had not seen the child pornography on his computer and did not know nor suspect it to be child pornography. The Judge rejected the appellant’s evidence and found that he had, therefore, 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 or suspect it to be child pornography.[40] He then went on to consider whether the prosecution could prove that he had viewed the child pornography or knew or suspected child pornography was on the computer. He rejected the appellant’s evidence that he downloaded a lot of pornographic files without reviewing or knowing what had been downloaded.

45.  Significantly, it was not in dispute that there was child pornography on the appellant’s computer.[41] We consider that the Judge was correct to find that the appellant exclusively used the computer, given that access to the computer was with a password using his name and that he acknowledged he downloaded the pornographic materials onto the computer[42]; and that the appellant had control and knowledge of the existence of the child pornography that was stored on the computer. In light of the quantity of the child pornography,[43] and the appellant’s admissions in his video recorded interview, he would have known that such material was present on his computer[44]. It was primarily on the basis that the appellant installed the software, eMule, on his computer and used search words such as “Russian” and “Jap”, which included in the downloaded material child pornography, that the Judge found the appellant knew of the child pornography.[45] However, the evidence was silent as to how much of the pornographic materials he knew was child pornography and whether he had viewed any of it.

46.  It appears that the only evidence of access to the child pornography on the computer were the searches using four variations of the keyword “pthc” (preteen hardcore)[46] in Annex 4.[47] It was the case that PW8 was unable to show how often these four keywords were used and what, if anything, was downloaded.[48]

47.  Having rejected the appellant’s evidence, the Judge found that the appellant had failed to adduce sufficient evidence to raise an issue to the fact that he had not seen the child pornography and did not know nor suspect it to be child pornography.[49] He said he was satisfied that in answer to the caution and in the video recorded interview the appellant “was admitting he downloaded the child pornography and that he had viewed some of the child pornography albeit rarely.”[50] Although, we note that when the appellant was cautioned for possession of child pornography, he responded by accepting that he downloaded “pornographic material”, for which he was sorry. He did not say it was “child pornography”, which was later inserted erroneously by the interpreter when his caution statement was repeated in his video recorded interview. However, in his video recorded interview, he does acknowledge the existence of child pornography on his computer, but he also states that he did not search for child pornography or go on any child pornography sites, and that he was not that kind of person.[51]

Ground 1: the statutory defence

48.  Ground 1 complains that the Judge erred in not finding that the appellant satisfied the evidential burden for the defence under s.4(3)(c) of not seeing, knowing or suspecting that he had child pornography on his computer. Mr Boyton refers to passages of the appellant’s evidence where he said that he had just downloaded pornographic files and that child pornography had been downloaded without his knowledge through the programme eMule.[52] He argues that this was consistent with the large number of files downloaded and found on the appellant’s computer. However, this ignores the fact that a large proportion of the pornographic files consisted of child pornography. Whilst the appellant did testify that he did not, and would not, specifically download child pornography, he did acknowledge the existence of the child pornography on his computer both in his evidence in court and answers in the video recorded interview. He specifically stated in the video recorded interview that he knew he had downloaded child pornography, although he explained that it was included when he did a general search.[53] He went as far as to explain that if he saw child pornography he would delete it.[54] However, in his evidence, he said he never came across child pornography when accessing the pornographic material on his computer and did not know there was child pornography on his computer.[55] When he was taken to the keyword searches with the letters “pthc”, he testified he did not make those searches although he accepted he had used keywords such as “Russian”, “Japan” and “jap” when accessing the pornographic material on his computer. Of the keyword searches with the letters “pthc”, there was “pthc jap”.[56] He said he did not read the titles of the incoming files[57] and there were no deletions on his computer because he did not see any child pornography[58].

49.  As noted by Mr Boyton, the Judge rejected the appellant’s testimony and found that the statutory defence was not made out. He argues, however, that some evidence in the prosecution case supported the statutory defence. He refers to the evidence of PW8 regarding the 2,572 files (Annex1) created between 2011 and 2016 that had never been deleted. He notes that when PW8 examined these files, the time created, time modified, and time accessed were inconsistent for a great deal of files, and therefore, he could not conclude from his analysis if they were opened or viewed. PW8 agreed that he did not go through the files to see how many had been viewed and did not test whether eMule had accessed these files. He also notes that the shortcut files linking to the 69 videos (Annex 2) are not connected to any sample child pornography materials identified in exhibit P31. He finally notes that PW8 confirmed that the time created, time modified, and time accessed in respect of the 1,545 video files (Annex 3) were inconsistent and that 4 of the files were modified on 21 November 2011 when the appellant was not in Hong Kong.

50.  We do not see how these matters arising from PW8’s evidence provided the appellant with an evidential basis to raise the defence that he did not know or suspect there was child pornography on his computer. We note that the Judge correctly directed himself on the law regarding an evidential burden.[59] It was not in dispute that the appellant had downloaded the pornographic materials on his computer, which included a significant quantity of child pornography. PW8’s findings, or the lack of findings, did not provide an evidential basis that the appellant did not know or suspect that there was child pornography on his computer.

51.  The Judge, having rejected the appellant’s evidence, turned to consider his admissions in his video recorded interview, in which the appellant acknowledged that he knew there was child pornography on his computer, but that he had no intention of downloading, nor was he interested in such material. The Judge also made findings that were well supported by the evidence that the appellant was the only person in his household that was interested in the pornographic material, having downloaded it over the years, and that it was his password that accessed the computer.

52.  We find that this ground of appeal fails.

Ground 2: the mixed statement

53.  By Ground 2, Mr Boyton complains that it was not reasonable for the Judge to have drawn the inference that the appellant possessed the child pornography because he downloaded all of the pornography and was the only person who was interested in the pornography on his computer. He refers to PW8’s evidence regarding files in exhibit P31 that were modified in 2011 when the appellant was not in Hong Kong, but as noted by the Judge, PW8’s evidence regarding Annexes 1 to 3 was less than satisfactory. He submits that the Judge was wrong to find that, in his video recorded interview, the appellant admitted there was child pornography on his computer when he said he was sorry. The appellant testified that when he said he was sorry, he was referring to the guilt he felt towards his wife for downloading adult pornography, but this was rejected by the Judge.[60]

54.  Mr Boyton submits that at its highest, the appellant confirmed that he had downloaded child pornography videos, but rarely watched them. He contends that this may have been a miscommunication, but it is clear that he gave answers acknowledging the existence of child pornography on his computer.[61] The Judge explained in his reasons that he gave full weight to the appellant’s admissions, meaning that he rejected the exculpatory parts.[62]

55.  Mr Boyton also submits that the Judge did not properly evaluate the appellant’s mixed statement by considering the whole statement when deciding where the truth lies. However, in our view, that is exactly what the Judge did in this instance.

56.  We reject this ground of appeal.

57.  It follows that the appeal against conviction must be dismissed, and the conviction upheld.

The sentence appeal

58.  In sentencing the appellant, the Judge set out the relevant sentencing guidelines and determined the classification level of the child pornography involved.[63] As noted, a large portion of the child pornographic material was at the highest classification level, involving grotesque and depraved acts of sexual activity with children. Taking into account that the maximum sentence for the offence was 5 years’ imprisonment, the Judge adopted a starting point in the upper range of the general guideline of 3 years and 6 months’ imprisonment, which he reduced by 4 months because of the inordinate delay in bringing the case to trial.

59.  Mr Boyton complains that the sentence passed by the Judge failed to take into account, as a mitigating factor[64], that the eMule programme may have supported the appellant’s testimony that he did not know of all the child pornography files on the computer. He submits that the eMule programme provided a large assortment of pornographic material, which, when downloaded, included child pornography. He points out that the appellant did not specifically download child pornography, nor would he have been aware of the nature and volume of such material because it was dispersed amongst a mass of other pornographic material. He submits that the evidence was unclear as to the extent the appellant had downloaded and possessed child pornography, which was mixed with other pornographic material, and it is this fact that was not taken into account in determining the gravity of the appellant’s offending and the appropriate level of punishment for it.

60.  As we have already noted, the prosecution expert analysis of the appellant’s computer was unclear and left certain critical matters unanswered. Consequently, the appellant’s conviction was primarily based on admissions he made in his video recorded interview that were limited and qualified, but sufficient to prove the critical issue that the appellant knew there was child pornography on his computer. However, as pointed out by Mr Boyton, there were aspects of the expert evidence that may have partly supported the appellant’s case since there was no evidence that he specifically downloaded and viewed child pornography, or that he was aware of the extent of the child pornography on his computer. He submits that the appellant had received child pornography that he did not know was present when downloading general pornographic material. Nevertheless, the appellant acknowledged the presence of child pornography in the materials he had downloaded, and there was evidence that searches had been conducted for preteen pornographic materials.

61.  On the evidence presented at trial, it appears that the appellant downloaded pornographic material en masse, which included child pornography that he did not remove. Whilst the quantity of child pornography was substantial, it was mixed with an even greater quantity of general pornographic material that was not contrary to the law to have stored on his computer. According to the evidence, the appellant did not specifically download child pornography or visit child pornography websites. All the same, he did accumulate within his cachet of pornographic materials a substantial quantity of child pornography, which he would have known was present. The expert evidence was unable to contradict the appellant’s contention that he did not actively seek or obtain child pornography, or access and view such material. As a result of the unsatisfactory nature of the expert evidence, there remained a question regarding to what extent the appellant downloaded child pornography in ignorance and without suspicion, which he had not seen. It follows that in the particular circumstances of this case, the sentence was excessive and should be set aside.

62.  We bear in mind the guidelines in Man Kwong Choi and the unusual circumstances of the case, in determining an appropriate sentence to be passed on the appellant. It must be understood that downloading child pornography is a serious offence that helps to perpetuate the market for such material, and thus leads to further egregious harm and abuse of children. The need to protect children requires the courts to pass deterrent sentences. However, we should emphasise that we have given the question of the appellant’s sentence anxious thought, but because of the unusual circumstances of the case and the state of the evidence, given that his conviction was mainly based on his qualified admissions, we consider the sentence should be lower. In light of the foregoing, we would adopt a starting point of 18 months’ imprisonment, which we would reduce by 4 months, as did the Judge, for the inordinate delay in bringing this case to trial, and sentence the appellant to 14 months’ imprisonment. This sentence would correspond to the time the appellant has already served.

Conclusion

63.  For the reasons we have given, we dismiss the appeal against conviction but allow the appeal against sentence as we have indicated.