HKSAR v. Reese Robert Miles David
Read the full judgment text of CACC 37/2022 on BabelCite. This Court of Appeal judgment was delivered on 23 September 2022.
1. 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.
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CACC 37/2022 [2022] HKCA 1109 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) ________________________
________________________ Before: Hon Zervos JA in Court Date of Hearing: 25 July 2022 Date of Judgment: 23 September 2022 ________________________ J U D G M E N T ________________________ 1.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. The application for leave to appeal 2.On 18 March 2022, an application for leave to appeal against conviction and sentence was filed by the applicant. He did not set out any grounds of appeal in relation to either application because he had not been able to obtain legal advice. He merely expressed his wish to apply for bail. An application for bail was refused on 28 April 2022. 3.On 27 April 2022, Mr Andrew Raffell, for the applicant, filed perfected grounds of appeal against conviction. These grounds of appeal were subsequently replaced by Mr David Boyton, who now represents the applicant. Mr Boyton filed perfected grounds of appeal against sentence on 2 June 2022 and amended perfected grounds of appeal against conviction on 27 June 2022. 4.Mr Boyton advances 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 applicant 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 applicant’s references to pornography in his out-of-court statements meant child pornography, and that he was apologising for the possession of child pornography. 5.Mr Boyton advances one ground of appeal against sentence. He complains that the Judge failed to take into account, as a mitigating factor, that the eMule programme, which the applicant used to download pornography, may have supported the applicant’s testimony, albeit rejected, that he did not know of “all” the child pornography files in his desktop computer. The prosecution case 6.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, “I downloaded the pornography videos but I rarely watched them. Give me a chance.”[1] 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 pornographic videos by using a programme called eMule; that he started downloading pornographic videos a few years prior 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. 7.It was admitted in evidence at trial that on 22 November 2016, 12,275 photographs and about 2,793 videos were stored in the applicant’s computer which included 4,738 photographs and 931 video clips containing the child pornography particularised in the charge and that all depicted real children under the age of 16 years. 8.The prosecution case focused on proving that the applicant had accessed and therefore possessed child pornography. 9.The prosecution called, amongst other witnesses, two experts, Sgt 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 applicant’s computer, whereas PW9 gave evidence how to search and download a file using the eMule programme. The expert evidence 10.There was an issue as to PW8’s analysis of the applicant’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.[2] 11.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.[3] He produced 5 Annexes 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.[4] The Judge explained the findings of PW8 as follows:[5]
12.Annex 4 was a list of 30 keywords used to search the eMule programme. PW8 did not know the dates of the searches and whether there was a maximum number of searches that could be shown on the list. By using the search keyword “pthc jap” and “pthc” in the eMule programme, PW8 explained that there were many results from which the user could select video files to download. The initials “pthc” stood for preteen hardcore. Annex 5 showed that 4,227 files had been downloaded using the eMule programme. 13.PW9 demonstrated how to search and download a file using the eMule programme. She testified that the eMule programme was freely available for downloading on the Internet; it did not automatically download files not selected for downloading; a file had to be downloaded 100% before viewing; files could easily be deleted by moving to the recycle bin and after removal from the recycle bin the file could not be retrieved. However, she accepted that that there was another method that could be used as a shortcut to select all files, which she had not tested and which could possibly be applied to the eMule programme. 14.As it transpired, the Judge did not rely on PW8’s analysis as set out in Annexes 1 to 3. He said:[6]
15.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 applicant’s case that he may not have seen or known of the child pornography in his computer. He complains that the Judge had inappropriately disregarded this evidence. 16.It would appear that the expert forensic evidence was unsatisfactory, and in certain respects unclear. The Judge turned to consider the other evidence before him. The applicant’s admission 17.Significantly, it was an admitted fact that the applicant’s computer contained a large volume of pornographic material which included photographs and video clips containing child pornography. The child pornographic material was not insignificant and the Judge addressed whether on the applicant’s own admission he knew and accessed the child pornography. 18.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 stated that under caution, he did not admit that he knowingly downloaded child pornography. 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. 19.The Judge found that the applicant by his answers in his video recorded interview admitted that he had viewed the child pornography and when he said he was sorry, he was apologising for downloading child pornography and not as he testified for searching adult pornography. 20.Mr Boyton submits that the Judge was wrong to come to this conclusion. He argues that whilst the applicant 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. 21.Mr Pierre Lui, for the respondent, argues that the applicant answered questions in the context of child pornography having been found on his computer. He refers to answers by the applicant which he says the applicant acknowledged that he had downloaded the child pornography.[8] However, there were answers given by the applicant that were inconsistent with this submission. In one of his answers he said:[9]
22.He also insisted he had no intention to download or access child pornography:[10]
24.He denied that he paid for any child pornography; reposted any child pornography; saved child pornography on other devices; printed child pornography or shared child pornography.[12] 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.[13] However, a large quantity of child pornography had not been deleted on his computer. The basis of the conviction 25.The Judge directed himself that on a charge under section 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 section 2 of the Ordinance and that the applicant was in possession of the child pornography. He explained 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: HKSAR v Justin Yves Herbonnet [2006] 1 HKLRD 862; Atkins v DPP [2000] 1 WLR 1427; McMurdo v HM Advocate [2015] HCJAC 37; and R v Okoro (No 3) [2019] 1 WLR 1638. This was subject to the defences under section 4 of the Ordinance. 26.The Judge rejected the applicant’s evidence and was of the view that the applicant acknowledged in his out-of-court statements that he had downloaded child pornography onto his computer and was sorry. The Judge said:[14]
27.The Judge was satisfied to the requisite standard 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 that the applicant therefore knew or suspected child pornography was on the computer and had viewed it.[16] The conviction appeal 28.In respect of the appeal against conviction, Mr Boyton criticises the Judge for failing to consider the evidence of the prosecution experts as supporting the statutory defence that the applicant may not have seen or known of the child pornography in his computer (Ground 1). Furthermore, he also criticises the Judge for the weight he placed on the applicant’s references to pornography in his video recorded interview, as being a reference to child pornography (Ground 2). The essence of the complaint under these grounds of appeal is whether the Judge rightly convicted the applicant for knowingly being in possession of child pornography. Whilst there is merit in Mr Boyton’s argument that the Judge may have unduly considered that the applicant was referring to child pornography when he was mentioning pornography in general in his video recorded interview, the Judge also supported his finding that the applicant was guilty of the offence by reference to the child pornography material on the applicant’s computer and to certain searches that must have been conducted by him. 29.Whilst the grounds of appeal against conviction are reasonably arguable, it is questionable whether they would disturb the conviction given the large quantity of child pornographic material and the apparent presence of it in the applicant’s computer at the material times. The sentence appeal 30.In sentencing the applicant, the Judge set out the relevant sentencing guidelines and determined the classification level of the child pornography involved.[17] As noted by him, a large portion of the child pornographic material 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. 31.In respect of the appeal against sentence, Mr Boyton complains that the sentence passed by the Judge failed to take into account, as a mitigating factor, that the eMule programme may have supported the applicant’s testimony that he did not know of all the child pornography files on the computer. See HKSAR v Justin Yves Herbonnet, at [5] and [6]. 32.This ground is based on the proposition that the eMule programme provided a large assortment of pornographic material which included child pornography. It is contended that the applicant 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. 33.As mentioned in addressing the appeal against conviction, the evidence showed that searches for preteen pornography had taken place on the computer, but Mr Boyton submits that it was unclear to what extent the applicant knew and had accessed the child pornography that had been downloaded onto his computer by the eMule programme. He essentially argues that the Judge erred by nominally sentencing the applicant on the child pornographic material on the computer as if he knew and had accessed the entirety of it. 34.Mr Boyton contends the evidence was unclear to what extent the applicant had downloaded and possessed child pornography, which was mixed with other pornographic material, and it is this fact that he complains was not taken into account in determining the gravity of the applicant’s offending and the appropriate level of punishment for it. 35.I am persuaded that this ground of appeal against sentence is reasonably arguable. Conclusion 36.For the reasons I have given, I am satisfied that the two grounds of appeal against conviction are reasonably arguable, although the question remains whether the substance of these grounds, if any, would disturb the applicant’s conviction for this offence. I am also satisfied that the ground of appeal against sentence is reasonably arguable. Accordingly, I grant the applicant leave to appeal against his conviction and sentence.
Mr Pierre Lui, SPP of Department of Justice, for the respondent Mr David Boyton, instructed by Littlewoods, for the applicant [1] AB (Appeal Bundle), 190-191. [2] AB, 90, at [265]. [3] AB, 92, at [271] and [272]. [4] Exhibit Bundle (EB), 172, at [7]. [5] AB, 63. [6] AB, 90-91. [7] See cross-reference folder, exhibit P31. [8] AB, 138, at counters 127 to 129 (the original post-record was to “pornographic videos” not “child pornography videos”) and 147, at counters 217 to 286 (reference is only made to counters 222, 223, 237 and 238). [9] AB, 153, at counter 246. [10] AB, 152, at counter 244. [11] AB, 173, at counter 378. [12] AB, 154-156, at counters 254-267; 162, at counters 305-308. [13] AB, 159-160, at counters 282-287; 165-166, at counters 326-332, 167, at counter 337; 168-169, at counters 345-350; and 162, at counters 310-312. [14] AB, 99 and 100, at [299] and [300]. [15] The Judge’s footnote refers to file numbers taken from the cross-reference folder, exhibit P31 are numbers 11, 19, 22, 24, 85, 86, 87, 91, 111, 118, 120, 194, 200, 205, 209, 345, 487, 519, 520, 523, 528, 562, 565, 581, 602, 621, 634, 635, 636, 637, 639, 645, 664, 673, 674, 678, 679, 686, 687, 688, 691, 699, 704, 711, 715, 717, 722, 724, 725, 730 and 738. [16] AB, 77, at [301] and [302]. [17] Secretary for Justice v Man Kwong Choi [2008] 5 HKLRD 519; R v Oliver [2003] 2 Cr App R (S) 64. |
Cases cited in this judgment
Further hearings and rulings under CACC 37/2022