HKSAR v. CHEUNG KAM KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 728 OF 1997

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J U D G M E N T

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1. The Appellant was charged and convicted in the Magistracy on one count of Publishing an Obscene Article, contrary to S.21(1)(a) of the Control of Obscene and Indecent Articles, Ordinance Cap.390 of the Laws of Hong Kong. ("the Ordinance")

2. The facts of the case were not disputed. They related to use of the Internet, defined as a worldwide collection of different and distinct computer networks working together as one. Internet users can use internet services provided by Internet Service Providers (ISPs) on paying a subscription; Asia On Line is one such ISP operating in Hong Kong. Appellant subscribed to Asia On Line Internet Services which offered a Newserver service similar to a "Notice Board" for exchange of information; it had various newsgroups. One such went by the name of alt.binaries.pictures.erotic.children ("the Newsgroup.")

3. In October 1996 a Senior Inspector of Commercial Crime Bureau accessed the Newsgroup through his own computer. He noticed 6 articles containing 17 pornographic pictures sent under the name 'Cheung Kam-keung' or 'Freeman'. On 24th October 1996, he accessed the Newsgroup again and found another article containing 2 obscene pictures which was posted from an E-mail address : 'cheung kk@ asiaonline.net. The 19 pictures were of children engaging in various sexual acts with adults or pictured in obscene poses. The Inspector copied the pictures from the Newsgroup to his computer, copied them to floppy diskettes, and printed hard copies. The Obscene Articles Tribunal on 16th May 1997 determined that all the pictures were obscene. Medical opinion from a Forensic Pathologist was given that the children were below the age of consent and mostly pre-pubescent.

4. Police executed a search warrant to obtain details from Asiaonline's records of the subscriber operating the E-mail address. A search warrant was executed at Appellant's residence, a computer with modem and computer storage media were found on the premises. A number of obscene pictures were stored in the computer's hard disk. Appellant was arrested and interviewed and admitted posting the pictures to the Newsgroup on the Internet using the computer found at his home.

5. The effect of such uploading by Appellant was that not only could subscribers of Asiaonline have access to the pictures, but such pictures could be transmitted to other Newservers of other ISPs both in Hong Kong and overseas. The pictures could then be downloaded and viewed as the Inspector had done.

6. Mr. Grossman, who had appeared for Appellant at trial, essentially rehearsed on appeal the same argument he had put before the Magistrate, which was that the prosecution had failed to prove the 3 essential elements of the offence: (a) whether the material constituted an article, (b) whether there had been publication of the material, and (c) whether publication had been made to the public or a section of the public. He argued that the Ordinance, which came into effect on 1st September 1987 could not have any relevance to an article such as a graphic computer file which was simply the transmission of an electrical stream.

7. "Article" is defined in section 2 (1) of the Ordinance as:-

"anything consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc or other record of a picture or pictures."

8. Section 2(4) provides :-

"For the purposes of this Ordinance, other than section 24(1E) and (1F), a person publishes an article if he, whether or not for gain,

(a) distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public;

(b) in the case of an article,

(i) consisting of or containing material to be looked at; or

(ii) that is a sound recording or a film, video-tape, disc or other record of a picture or pictures, shows, plays or projects that article to or for the public or a section of the public."

9. Section 2(5) of the Ordinance provides:-

"For the purposes of subsection (4):

(a) "article" includes anything which is intended to be used, either alone or as one of a set, for the purpose of manufacturing or reproducing an article; and

(b) "person" and "public" include, respectively, a person having the control or management of anything which is or purports to be a club, and the members of that club."

11. As to the definition of "article", the Magistrate found that section 2(1) and section 2(4) did not specifically refer to computer disc, computer data or computer file, but did refer to "disc or other record of a picture or pictures." In his judgment, the legislature clearly contemplated such computer-related technology when the Ordinance was passed in 1987. He found the clear words of the definition of "article" sufficiently wide to cover the computer files or electronic data uploaded to the Internet by the Appellant.

Publication

12. The prosecution case was that publication was complete when Appellant uploaded the computer files to the Newsgroup because the pictures then became available to other persons with access. Whether someone chose to download them or not, the articles had been published. The Magistrate found that Appellant, by uploading the computer files or electronic data to the Newsgroup, had distributed and circulated the pictures they contained thus "publishing" within S.2(4)(a). Further, since the images could be seen on screen in the process of downloading, they were also shown and projected within limb (b) of section 2(4). He found publication proved.

Public or Section of the Public

13. Counsel for the Appellant argued that as recipients had to take an active role to download files and could only receive the transmission of the files privately, they did not therefore form the public, or a section of the public, as contemplated by the Ordinance.

14. The Magistrate found that once the files were uploaded to the Internet, they were available to other Internet users with access, not only to subscribers, e.g. Asiaonline, but to all those who could access the files through other newgroups, whether in Hong Kong or overseas. He found there was no requirement that publication was confined to publication "in public" and considered, with good reason, that the size of the potential group with access certainly constituted the public or section of the public.

15. Appellant's counsel argued that the Ordinance had come into effect on 1st September 1987, some years before the Internet was established in Hong Kong. At the trial experts called by the prosecution agreed the Internet had been in operation in Hong Kong for about three years prior to the date of the offence, although there was no precise evidence on the date it became viable.

16. Counsel for the Appellant said the Magistrate was incorrect in interpreting the word 'article' as he did, when common sense dictated that such an interpretation could not have been contemplated or intended by the Legislature.

17. A superficially attractive argument proceeded during which counsel exhaustively examined the Ordinance to show that its tenor was to control books, magazines, radio and television material and that computer generated material was never contemplated by the legislature. Further it was a distortion of the definition of publish to include in its meaning the transmission of a stream of electricity, as "publish" was given a restrictive meaning and publication had to be to the public or a section of the public - to transmit an electronic stream to persons who had to actively download it was not sending to the public.

18. The Respondent argued that the definition of article in section 2 of the Ordinance amply covered the computer files the subject of the charge, and that such an interpretation accorded with the language of the section, as well as being consistent with the policy objectives sought to be achieved by the Ordinance.

19. The Respondent argued that the acts of the Appellant fell within the definition of publish as section 2(4) of the Ordinance contemplated it, both as to section 2(4)(a) and also within the alternative limb 2(4)(b). As for "public" or "a section of the public", Mr. Wong argued that the element of public or a section of the public was not to be given a restrictive reading as is shown by section 2(5)(b) of the Ordinance.

20. The Respondent contended that the class of persons constituted by the subscribers of the Internet service provided by Asiaonline Limited and the users of the Internet service in Hong Kong satisfied "public or section of the public".

21. Respondent referred to, and relied on, the case of Attorney General's Reference (No.5 of 1980) [1980] 3 All ER 816 and Fellows & Arnold [1997] 1 Cr App R 244 in support of his argument.

22. The case of Fellows and Arnold was particularly apposite in regard to the Respondent's case. There the Appellant, Fellows, used a computer to store data enabling him to display indecent pictures of children on the computer screen and to produce prints. He established a password so pictures could be accessed through the Internet by those to whom the password was given, who were either vouched for by other password holders, or who provided additional similar data. The second Appellant, Arnold, was a recipient who provided such additional data. Fellows was convicted of four offences of having in his possession indecent photographs of children with a view to their being distributed or shown by himself or others, contrary to section 1(1)(c) of the Protection of Children Act 1978 and of one offence of publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959. Arnold was convicted of three offences of distributing or showing indecent pictures of children contrary to section 1(1)(b) of the Act of 1978.

23. They appealed on the grounds that the computer disc was not a photograph for the purposes of section 1 of the Act of 1978 and therefore the data was not distributed or shown within the meaning of the Act. It was held dismissing the appeal: (1) that the scope of the definition of indecent photographs in sections 1 and 7 of the 1978 Act was wide enough to include a form of technology not anticipated when that act was passed; that although the computer disc was not a photograph, it contained data which could be converted into a screen image and into a print exactly reproducing the original photograph from which it was derived; that there was no restriction on the nature of a copy and the data represented the original photograph in another form and accordingly the judge was correct to rule the disc held data which came within the definition of photograph for the purposes of the 1978 Act. (2) that merely because the recipient obtained an exact reproduction of the photographs contained in the archive in digital form did not mean that the (copy) photographs were not held in the 1st Appellant's possession with a view to those same photographs being shown to others; the same data was transmitted to the recipient so that he would see the same visual reproduction as was available to the sender. Accordingly, both Appellants were guilty of offences under the 1978 Act.

24. The technology with which the court was concerned in Fellows was similar to that with which the Magistrate was concerned here, because the Obscene Publication Act 1959, as amended 1964, defined both "article" and "publish" in terms which did not provide specifically for the computer technology which was available to the 1st Appellant by 1994. Fellows argued therefore that his computer based activity could not constitute an offence under the 1959 Act.

25. At page 250 of the report, the mechanics of obtaining of the pornographic material and its dissemination are described. The court, in considering the law on the matter, found that Fellows had created an archive of data stored in the hard disc of the computer derived from pornographic photographs of children, which could be downloaded by other computers whose operators knew the correct password. That is similar to the way this Appellant operated.

26. The court in Fellows was obliged to consider issues of statutory interpretation and in doing so, referred to an earlier case Attorney General's Reference (No.5 of 1980) (1981) 72 Cr. App. R. 71 [1980] 3 All ER 816. There the court had to decide whether a person who provided screen images derived from a video-tape published an obscene article, contrary to section 2 of the 1959 Act.

27. The defendant's argument that an offence under section 2 could only be committed when a conventional i.e. celluloid film was shown, played, or projected on screen was rejected. The "article" complained of was a video-cassette containing magnetised tape which, when played, emitted electric signals causing images to be displayed on screen. The system did not involve projecting light onto a screen as for earlier film. Nevertheless, the court held that the video cassette was an article which produced pictures or sounds within the meaning of the Act and said that the words "play" or "project", if not "show", were wide enough to describe what happened when pictures were produced by this means.

28. The judges in Fellows decided that the Attorney General's Reference was a direct authority on the issues they were considering under the 1959 Act and that it was also relevant to the construction of the 1978 Act, because the court acknowledged that it was at least doubtful whether in 1959 Parliament envisaged that video-cassettes would become widely available and so provide the means for obscene displays which contravened the Act.

29. Defence counsel in A.G's Reference contended the court should be slow to apply the words to a piece of electronic equipment which probably had not been within the contemplation of Parliament when the Act was passed.

30. Lawton L.J. said in considering the argument that the court had borne in mind that particular admonition, "but if the clear words of a statute are sufficiently wide to cover the kind of electronic device with which we are concerned in this case, the fact that that particular form of electronic device was not in the contemplation of Parliament in 1958 is an immaterial consideration. In any event in 1959, Parliament would almost certainly have had in mind the fact that electronic equipment for reproducing words and pictures was something likely to come about in the near future. In those circumstances, it is not all that improbable that words were chosen which were wide enough to embrace any developments in the electronic field. But speculation as to what Parliament had in mind and what it probably had not got in mind is neither here or there. It is the duty of this court to consider the wording of the Act and to construe the words in it (if they are words of ordinary English usage,) in the ways in which they would have been understood by ordinary literate persons at the material time, namely 1959."

31. Evans L.J in Fellows stated @252F "We respectfully endorse that as the correct approach when as here the question is whether some more recent technical development is within the scope of a statute which was passed before the development took place or at a time when for some other reason Parliament was unlikely to have had the particular development in mind. Given the state of contemporary knowledge, it is possible the statute on its true construction applies only to what was known at that time, but it is also possible that it applies to future developments, not then anticipated, by virtue of the wording that was used."

32. The court in Fellows concluded that that reasoning was entirely appropriate to the issues in their case and agreed that the 1959 Act had to be interpreted as it was understood by "ordinarily literate persons" when it was passed, and the data stored in the disc was "shown, played or projected" to those who gained access to the archive by means which, though not available in 1959, nevertheless could be regarded as being within the ordinary meaning of those words. On that basis, the court dismissed the appeal.

33. Despite Mr. Grossman's valiant and superficially plausible argument, I am of the view that the Magistrate was correct in accepting the Respondent's argument at trial and in adopting the reasoning in Fellows.

34. The definition of article in section 2 of the Ordinance is very wide and the term "disc or other record" can cover the graphic computer files complained of. The Ordinance came into effect at a time when computer technology was well developed and it is possible that it applied to future developments in that field through the wording used.

35. After listening to counsel's arguments on this appeal and having considered the evidence and the relevant authorities I am of the view that the Magistrate decided this case correctly and that Appellant was properly convicted.

36. The appeal against conviction is dismissed.