HKSAR v. TSANG KWOK HIN

HCMA327/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.327 OF 2005

(ON APPEAL FROM TWCC 1455 OF 2004)

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REASONS  FOR  JUDGMENT

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1. The appellant was convicted after trial of one charge of ‘Possession of Child Pornography’, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap.579 (“the Ordinance”).  He appeals against that conviction.

2. The particulars of the charge were that, on 3 May 2004, the appellant had in his possession 10 child pornography images inside a computer hard disk.

3. The prosecution case was simple.  Police officers visiting the appellant’s home found an old computer disk storing the said pornographic images.

4. The appellant who did not challenge the police finding, and who did not testify, called one witness, a computer expert whose evidence was that the images could have been looked at and automatically stored by the computer without informing its user.

5.  It would appear that there was some disagreement on this by the prosecution expert but, in the end, the magistrate concluded that this area of evidence was not material.

6. His reasoning was as follows :

“	9.	Section 3(3) of the Child Pornography Ordinance states that ‘Any person who has in his possession child pornography ….. commits an offence’.  I found that this section meant in the first instance that the prosecution only had to prove physical possession of the images until such times as the defendant had raised issue on one of ‘the facts’ found in Section 4.  Once the defendant had done this to the extent required in the Ordinance then the burden shifted back to the prosecution to disprove that ‘fact’ beyond reasonable doubt.  The issue of whether the Ordinance breached the defendant’s rights to silence was not raised in the trial.  I found the defendant had to give evidence in this trial to raise issue on ‘the fact’, as I found he was unable to raise such issue by his cross-examination of the prosecution witnesses and his expert.
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	12.	I found therefore the Ordinance did not require the prosecution to prove knowledge of the presence of the images (as well as physical possession/control) until the defendant had raised an issue on the ‘fact’.  I further found that in the absence of such evidence raising an issue on the ‘fact’, as I found in this case, the prosecution could prove the case without having to prove the defendant’s knowledge beyond reasonable doubt.
	13.	I therefore found that the prosecution had proved beyond reasonable doubt that the 10 child pornographic images were in the defendant’s physical possession on his old hard disk (agreed fact) and that they were child pornography in content (agreed fact) ….. Knowledge was not a requirement for the prosecution to prove in this particular case.  No other defence under Section 4 was raised in the trial.”

7. Section 4 of the Ordinance 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.”

8. Before me, counsel for the appellant has advanced a number of grounds, one of them being the magistrate had misdirected himself that, in this case, the prosecution was under no duty to prove that the appellant had knowledge of the presence of the images in question.  

9. On the strength of R. v. Smith; R. v. Jayson [2003] 1 Cr. App. R. 13, government counsel concedes the point.  On the strength of that English decision, she submits that section 3(3) of Cap.579 does not create a strict liability offence, the opposite of which is, judging from his reasoning, precisely what the magistrate seemed to be suggesting.

10. It should be noted that government counsel concedes only on the point of knowledge of the presence of the images.  She reserves her position as regards an offender’s knowledge of the nature of those images.  It is however unclear whether that would render section 3(3) a strict liability offence after all.

11. I should add that the English provisions on which the English decisions were based are fairly different from ours.

12. To conclude, no argument has been offered before me on the true construction of sections 3 and 4 of the Ordinance.  Instead, government counsel assures me that she has the authority of the police and the Department of Justice to concede the narrow point mentioned.  It is, I am told, how the authorities have always understood the relevant sections.    It is certainly a way of construing them.  On that basis, I allow the appeal.