HKSAR v. Reese, Robert Miles David

CACC 37/2022

[2022] HKCA 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 37 OF 2022

(ON APPEAL FROM DCCC 936 OF 2020)

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Before:  Hon Zervos JA in Court

Date of Hearings:  14 and 28 April 2022

Date of Decision: 28 April 2022

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D E C I S I O N

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1.This is an application for bail pending appeal.

2.On 23 February 2022, the applicant 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 section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579 (“the Ordinance”).  The judge sentenced the applicant to 3 years and 2 months’ imprisonment.

3.On the morning of 22 November 2016, the police conducted a search of the applicant’s residence.  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 applicant was arrested and cautioned for possession of child pornography.  In response he said that he had downloaded the pornographic videos but seldom watched them and asked for a chance.  Later the same day, in a video recorded interview, the applicant admitted, amongst other things, that the computer belonged to him; that he had downloaded child pornographic videos by using a program called eMule; that he started downloading child pornographic videos a few years ago 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 but had watched some; and that it was a habit he could not control and he knew it was wrong.  It was admitted in evidence at trial that on 22 November 2016, 12,275 photographs and about 2,793 videos, including the 4,738 photographs and 931 video clips containing the child pornography particularised in the charge, were stored in the applicant’s computer and that all depict real children under the age of 16 years.

4.I bear in mind that bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the “merits ground”), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the “time ground”).  In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[1] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[2]

5.On 17 March 2022, an application for leave to appeal against conviction and sentence was submitted by the applicant.  He did not set out any grounds of appeal in relation to both applications because he had not been able to obtain legal advice.  He merely expressed his wish to apply for bail. 

6.On 4 April 2022, the applicant submitted an application for bail together with an affirmation in support.  In his affirmation, the applicant notes that prior to his conviction he was a person with a clear criminal record.  He essentially requests that he be granted bail in order to sort out his finances for his children, who are still at school; ex-wife, who is undergoing medical treatment; and ageing mother.

7.At the hearing on 14 April 2022, the applicant was represented by Mr Andrew Raffell, who requested, and was granted, an adjournment to obtain instructions from the applicant in order to file perfected grounds of appeal, which he did on 27 April 2022.  There are four grounds of appeal.  However, in his written submission supporting this application, Mr Raffell states that he has had a short time and difficult circumstances take instructions from the applicant because of the public health restrictions and believes that more considered and stronger grounds will become apparent. 

8.The first ground generally complains that the judge failed to properly consider the possible scenarios where the applicant may not have been guilty.  First, the judge erred in failing to properly consider the unlikeliness for the applicant to leave a computer with child pornography unprotected by a password, particularly where the applicant’s young children were present.  Secondly, one of the prosecution expert witnesses agreed that he did not actually know whether the applicant was the one using the computer and the judge erred in failing to properly consider such a reasonable doubt.  The respondent submits that this ground ignores applicant’s admission that he made after caution and in his evidence before the court.  It was an admitted fact that after caution, the applicant said, “I downloaded those pornographic videos but I seldom watch them.  Give me a chance.”  In his testimony at trial, he admitted, amongst other things, that he used the computer to browse and download adult pornography even though the computer was not protected by a password.

9.The second ground complains that the judge erred in applying the standard of “inherently improbable” in lieu of “beyond reasonable doubt”.  The respondent submits that it was plainly apparent from the judge’s reasons for verdict that he applied the requisite standard of proof, and that he used the expression “inherently improbable” when discussing the evidence and making findings of fact.

10.The third ground complains that the judge erred in failing to adequately consider the possibility of the computer being tampered with while in police custody.  The respondent submits that the dispute about the chain of evidence must be viewed in light of the admitted facts where it was stated that when the computer was seized on 22 November 2016 it had stored in it the pornographic materials as alleged in the charge.

11.The final ground complains that the judge failed to consider that the applicant was first arrested in 2016 but remained in Hong Kong until 2019 when he was rearrested, and that a guilty person would have fled the jurisdiction.  The respondent submits that this involves speculation and is not a valid complaint.

12.Mr Raffell seeks to secure bail for the applicant on the basis that he comes from a very respectable background and has strong family connections within Hong Kong.  He notes that the applicant remained in Hong Kong for 3 years, knowing that the police suspected him of having committed the crime which he has now been convicted.  He further notes that the applicant has strong family support to assist him and ensure that he complies with the terms and conditions of his bail, if it is granted.

13.Despite the plea from Mr Raffell to grant the applicant bail, his submission does not address the test that has to be satisfied for granting this exceptional remedy.  Whilst he has articulated various grounds of appeal, I am not persuaded that they satisfy the merits ground.

14.The judge gave very detailed reasons for his verdict and sentence.  In convicting the applicant for the offence under section 3(3) of the Ordinance, the judge noted that possession involved the prosecution proving that the applicant had control and knowledge of the existence of the photographs and video clips on the computer but not that the applicant knew they were child pornography or that he had opened the files.  He further noted that the applicant may rely on any of the statutory defences set out under section 4 of the Ordinance.  

15.In contesting the charge, the applicant 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 relied on the statutory defence in section 4(3)(c) of the Ordinance that he had not seen the child pornography and did not know, nor did he suspect, it to be child pornography.  However, the judge did not find the applicant credible and he gave detailed reasons for rejecting his evidence.

16.The applicant challenged the lawfulness of the search.  The judge held a voir dire on the issue, and after receiving evidence and submissions from the parties he ruled the search was lawful.  The applicant also challenged the chain of evidence in respect of the computer and the reliance on expert evidence by the prosecution.  All these matters were comprehensively addressed by the judge in his reasons for verdict.

17.In sentencing the applicant, the judge gave very detailed and considered reasons for the sentence he imposed.  He set out the relevant sentencing guidelines and determined the classification level of the child pornography involved.[3] As noted by him, a large portion of the child pornographic materials were 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 on to trial. 

18.The application for bail is refused.

Mr Ma Man Hon, Michael, SPP (Ag) of Department of Justice for the respondent

Mr Andrew J Raffell, instructed by Littlewoods, for the applicant

[1]  HKSAR v Fong King-choi, unrep., CACC 319/2018, 2 May 2019, at [3]-[6].

[2]  HKSAR v Chung Ho Yin, unrep., CACC 75/2020, 17 September 2021, at [39] and [40].

[3]  Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519; R v Oliver [2003] 2 Cr App R (S) 64.