HKSAR v. Lau Chi Kin

[English Translation - 英譯本]

HCMA 241/2022

[2024] HKCFI 1062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 241 OF 2022

(ON APPEAL FROM ESCC 2394 OF 2020)

__________________

__________________

JUDGMENT

A.  Introduction

1.The appellant was charged with four counts of publication of obscene articles, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. The appellant pleaded not guilty to the charges. He was convicted of the four charges after trial before Jason Wan (“the magistrate”), a Magistrate at the Eastern Magistrates’ Courts, and sentenced to a total of 12 months’ imprisonment. The appellant appealed against both the conviction and the sentence.

B.  Prosecution Case

B1.  Background

2.The prosecution case was that the appellant, a doctor, and PW2, female X (“X”), a nurse, were lovers between June and September 2016. They both worked in the same hospital and had had sex around 10 times. This was, in fact, a secret love affair. The appellant was married at the time. When X learnt that the appellant would not divorce his wife, she broke up with him, bringing an end to the relationship.

3.After breaking up with the appellant, X became romantically involved with PW1, male Y (“Y”), around early November 2016, and got married in late November 2019. Owing to an incident involving X, Y saved the appellant’s mobile phone number, “9838 9604”, as “Thomas Lau” to his contacts on his mobile phone in 2017 when he was in a relationship with X.

4.On 14 May 2020 at 11:56 p.m., Y learnt from his friend that the wedding photo of X and Y was posted to a Telegram group, “HK All-inclusive J Group of Wives in Training ~ Hongkongers Add Oil （HK調教人妻の綜合J谷～香港人加油）” (hereinafter called the “Wives in Training Group （調教人妻群組）”). Y tried to check by joining the group via the invitation link given to him by his friend, but found out that the Telegram application on his iPhone censored pornographic content and thus the content of the group could not be displayed.

5.Y then asked his friend how to view the content of Wives in Training Group. He was first directed to an uncensored Telegram group called “Telegram18HK”, which contained a tutorial on how to browse pornographic content on Telegram. Y followed the tutorial and downloaded another mobile application, Revgram. According to the expert opinion of PW7, Dr Chow Kam Pui, Revgram was actually a revised client[1] of Telegram which was still using Telegram’s server. By comparison with the official client of Telegram, Revgram ran faster, carried out more functions and was able to circumvent the censorship mechanism of Telegram[2].

6.When logging in to Revgram with his Telegram account, Y was required to enter a verification code, which he received from his own Telegram application. Y entered the verification code on Revgram and successfully logged in to his Telegram account. Through Revgram, Y was able to view the pornographic content, including the content of the Wives in Training Group, on the iPhone version of Telegram application that had been previously censored[3].

7.While Y was, as mentioned above, figuring out how to view the pornographic content of Telegram, he learnt from the aforementioned friend that the user name of the Telegram account releasing his wedding photo was called “tititata123”, which had joined Telegram groups including the Wives in Training Group and “Adult Toys （大人の玩具）” (hereinafter called the “Adult Toys Group （大人玩具群組）”).

8.In the small hours of 15 May 2020, Y succeeded in joining the Wives in Training Group and browsing the content therein. He found the instant message that published his wedding photo, and checked the user information of the sender of the message. As revealed in the user information, the user name was “tititata123”, with the mobile phone number “9838 9604” displayed below the user name. Given the reason stated in paragraph 3 above, Y knew that the mobile phone number belonged to X’s ex-boyfriend, Thomas Lau (i.e. the appellant). Moreover, the display name of Telegram user tititata123 was also “Thomas Lau”.

9.Y noticed that apart from publishing the wedding photo of X and Y on 14 May 2020 at 17:56, Telegram user tititata123 also published a sexy photo of someone suspected to be X in a white top on the same day at 21:27. X confirmed that the subject of the photo was none other than her, and that she had sent the photo to the appellant. X stated that she was very afraid that Telegram user tititata123 had released other photos, so she and Y started monitoring the groups that they knew Telegram user tititata123 was in.

10.On the evening of 15 May 2020 around 17:00 hours, X and Y made a report to the police at the North Point Police Station. As there were no signs of Telegram user tititata123 publishing any photos of X exposing her nipple/genitalia or photos of X that reached the level of pornography at the time, X and Y were told that the incident did not constitute any publication of obscene articles, but if they noticed any pornographic photos published in future, they should make a record of and save the publication, and report the case to the police.

B2.  Publication of Obscene Articles involved in Charge 1

11.On 16 May 2020 at 1:07 a.m., Y noticed that Telegram user tititata123 (mobile phone number: 9838 9604; display name: Thomas Lau) published in the Wives in Training Group a photo of a female, suspected to be X, fellating a male with her nipple(s) exposed. The head of the female was pixelated in the photo. Nevertheless, not only did X recognise herself in the photo, but she also recognised the location of the photo to be a room of New World Millennium Hong Kong Hotel where she fellated the male. X had got a room in the said hotel only when she was dating the appellant in 2016, so the male in the photo was the appellant. X was not aware that the appellant had kept her in the dark and taken that photo.

12.Y immediately made a record of the publication of the photo by taking screenshots and screen recordings with a mobile phone, and he saved the record via email and USB flash drive for the purpose of handing it over to the police. On 16 May 2020 around 2 a.m., X and Y made another report to the police at the North Point Police Station.

13.Subsequently, Y messaged the administrator of the Wives in Training Group, requesting that (1) the wedding photo of X and Y, (2) the sexy photo of X in a white top, and (3) the photo depicting X fellating another person with her nipple(s) exposed be deleted from the group. On 16 May 2020 around 8 a.m., the administrator deleted the abovementioned photos at the request of Y.

B3.  Publication of Obscene Articles involved in Charge 2

14.On the evening of 17 May 2020 around 18:32 hours, Y noticed that Telegram user tititata123 (mobile phone number: 9838 9604; display name: Thomas Lau) published in the Wives in Training Group yet another photo of a naked female suspected to be X with her nipple(s) exposed. The photo showed the exposed breasts and part of the face of the female. X recognised herself as the female in the photo and, based on the objects suspected to be red pillows in the photo, she recognised that the photo had been taken in Crowne Plaza Hong Kong Kowloon East. X had got a room in the said hotel only when she was dating the appellant in 2016. However, X did not know that the appellant had clandestinely taken the photo without her permission.

15.After making a record of this publication of photo with a mobile phone, Y contacted the administrator of the Wives in Training Group again, requesting that the photo be deleted from the group. The administrator deleted the photo on the same day.

16.Y subsequently handed over to the police the record he made as regards this release of photo.

B4.  Publication of Obscene Articles involved in Charge 3

17.On 22 May 2020 around 14:32 hours, Y noticed that Telegram user tititata123 (mobile phone number: 9838 9604; display name: Thomas Lau) published in the Adult Toys Group a video of a naked person suspected to be X with nipple(s) exposed. The video had sound and lasted 17 seconds, in which the face, the exposed breasts and the pubic hair of the female were visible. X recognised herself as the female in the video, and recognised that the sound of the video was made by her and the sex toy. The video was also recorded in Crowne Plaza Hong Kong Kowloon East. X had got a room in the hotel only when she was dating the appellant in 2016, and she was not aware that the appellant had clandestinely recorded the video.

18.After confirming with X and making a record of this publication, Y contacted the administrator of the Adult Toys Group, requesting that the video be deleted from the group. The administrator deleted the video around 15:00 that day.

19.Y subsequently handed over to the police the record he made as regards this release. Despite the fact that the video lasted 17 seconds, it displayed 00:15 in the top left corner, as shown in the second screenshot of exhibit P8a produced in court. The prosecution did not produce any evidence to explain the discrepancy between the 17-second video and the time of 15 seconds shown. (The prosecution explained in the closing submissions that the video had been played for 2 seconds before the screenshot was taken, and that the time shown in the screenshot represented the remaining play time, i.e. 15 seconds[4].)

B5.  Publication of Obscene Articles involved in Charge 4

20.On 22 May 2020, shortly after the administrator of the Adult Toys Group deleted the 17-second video involved in Charge 3, Y at 15:45 hours on the same day noticed that Telegram user tititata123 (mobile phone number: 9838 9604; display name: Thomas Lau) published the same 17-second video in the Adult Toys Group again. Upon confirmation with X, Y contacted the administrator of the Adult Toys Group again, requesting that the video be deleted. As the administrator instantly deleted that video on that occasion, there was not enough time for Y to make a record of this release.

B6.  Other Evidence from the Prosecution

21.Both parties agreed that the articles involved in Charges 1 to 4 as mentioned above were all obscene articles under the Control of Obscene and Indecent Articles Ordinance.

22.On 26 May 2020 around 18:30 hours, the police arrived at the appellant’s residence with a search warrant. A woman claiming to be the appellant’s wife answered the door and informed the police that the appellant was away from home working out and he would return to the residence around 19:00 hours. The police left for a short while and went to the appellant’s residence again around 19:20 hours on the same day, but no one answered the door this time.

23.On 26 May 2020 around 21:00 hours, the police visited the appellant’s residence again. The appellant answered the door and was arrested by the police for the offence of publication of obscene and indecent articles. Under caution, the appellant said, “I understand.” At that time, a police officer found upon search from the appellant and seized, among other things, an iPhone 11 Pro with SIM card belonging to the appellant and an Apple Watch. Ultimately, the police were unable to unlock the appellant’s mobile phone to review its content.

24.According to the admitted facts, the defence admitted that the appellant was in Hong Kong at all material times, that the appellant’s mobile phone number was “9838 9604” between 19 November 2011 and 7 June 2020, and that the appellant was the subscriber and the user of the mobile phone number.

25.PW6, Sergeant Lai Ka Pak of the Cyber Security and Technology Crime Bureau, and PW7, Dr Chow Kam Pui, Associate Professor of the Department of Computer Science of the University of Hong Kong, both gave evidence as experts. Their expert opinions were tendered to the court by virtue of section 65B of the Criminal Procedure Ordinance. The defence did not dispute that they were called as experts. The prosecution experts opined that:

(a)  In order to use Telegram, one must sign up for a Telegram account with a mobile phone number. For registration, entering the verification code sent to the mobile phone number via SMS was required. Upon completion of registration, the mobile phone number would be associated with the Telegram account. While every Telegram account had a unique user name, a non-exclusive display name could also be used[5].

(b)  A user could log in to the same Telegram account on multiple platforms. When logging in to his Telegram account on a new platform, the user would be required to enter a verification code. To ensure that it was the registered user who logged in to the Telegram account, Telegram would send a verification code to (1) the mobile phone number associated with the account via SMS (i.e. the user could receive the verification code from the SMS inbox on his mobile phone) or (2) the Telegram account via Telegram itself (i.e. the user could receive the verification code from the Telegram platform to which he had already logged in) [6].

(c)  If a user, when using Telegram on a mobile phone, noted that the user profile of a Telegram account showed not only its user name, but also its mobile phone number, it meant that the mobile phone number associated with that Telegram account had already been saved to the contacts of the user’s mobile phone. In that case, the display name of that Telegram account would be the same as the contact’s name saved to the contacts of the user’s mobile phone. On the contrary, if the mobile phone number associated with that Telegram account was not saved to the contacts of the user’s mobile phone, only the user name of that Telegram account would be shown on Telegram on the user’s mobile phone, and not the mobile phone number associated with the Telegram account[7].

(d)  Y’s description of how he used Telegram and Revgram was consistent with the expert’s knowledge of how Telegram and Revgram operated[8].

26.It was the prosecution case that (1) the appellant was the subscriber and the user of mobile phone number “9838 9604”; (2) Y had already saved the appellant’s mobile phone number “9838 9604” in 2017; and (3) Y noticed in this case that a mobile phone number “9838 9604” was also displayed below the user name “tititata123”, the Telegram account that published the obscene articles in question. Therefore, the only reasonable inference was that the appellant had published the obscene articles involved in Charges 1 to 4 with a Telegram account associated with his mobile phone number and whose user name was “tititata123”.

C.  Defence’s Stance

27.At the outset of the original trial, the defence disputed the admissibility of the screenshots and the videos provided by Y (“Y’s records”) to the police. The defence contended that the court could not accept Y’s records as evidence on the grounds that the prosecution failed to comply with the requirements under section 22A of the Evidence Ordinance. As a result, the magistrate handled the dispute as a special issue. During the submissions on the special issue, the defence stated that they withdrew the dispute over the admissibility of Y’s records[9], and accepted that the Evidence Ordinance was not applicable.

28.The appellant elected not to give evidence on both special and general issues. The defence called Dr Ricci Ieong as a defence expert witness. Two expert reports by Dr Ieong were produced in court by virtue of section 65B of the Criminal Procedure Ordinance. His capacity as an expert was not in dispute. It was Dr Ieong’s expert opinion that there were traces of suspected use of “Photoshop” in some of the screenshots in Y’s records (i.e. the metadata of 7 screenshots contained the word “Photoshop”), so these screenshots might have been edited.

29.As seen from the line of cross-examination by Mr Mak Kin-ming, counsel who then appeared for the defence, it was the defence case that the appellant had never had a romantic or sexual relationship with X. This case was, in essence, a fabrication made by X and Y against the appellant. In any event, the prosecution’s evidence was insufficient to prove that the appellant had published the obscene articles in question.

D.  Verdict of the magistrate

30.Having directed himself that the appellant had no criminal conviction records and that it was his right to elect not to give evidence, the magistrate considered the evidence of the present case. The magistrate was of the view that the testimonies of X and Y were very credible. He pointed out that he considered the testimonies of X and Y with particular caution, including their relationship with the appellant. Since X and Y described the particulars of the incident with great details, were frank in their testimonies and unshaken under cross-examination, the magistrate took the view that they must be recounting their own personal experience. The defence put forward a proposition that X and Y had fabricated evidence against the appellant. Having analysed the circumstances and the evidence of the present case, the magistrate found such a proposition extremely irrational.

31.The defence expert witness raised that there were traces of suspected editions in some of the screenshots in the records of Y. In this regard, the magistrate noticed that the expert opinion could at most illustrate the possibility that some of these screenshots had been edited, but it was not to prove that these screenshots had in fact been edited.

32.The magistrate accepted the other evidence adduced by the prosecution, including the opinions of the two prosecution expert witnesses. He took the view that PW3, PW4 and PW5 (that is, the police officers who handled the present case) and the two prosecution expert witnesses were all reliable witnesses. And the defence did not raise any substantial disputes on their evidence.

33.On the above evidential basis, the magistrate found that the Telegram account registered with the mobile phone number “9838 9604” (that is, the Telegram account with the user name “tititata123”) published the obscene articles involved in Charges 1 to 4.

34.The appellant admitted that he was the subscriber as well as the user of the mobile phone number “9838 9604” at the relevant time, and there was no evidence to show that someone else used the appellant’s mobile phone number at the relevant time. In addition, each mobile phone number would only correspond to one Telegram account. Thus, the magistrate inferred that the appellant was the user of the Telegram account with the user name “tititata123”. In the absence of any supporting evidence, the magistrate noticed that the assumption of the appellant allowing others to use his own Telegram account and giving others the obscene articles involved in Charges 1 to 4 of the present case (which ultimately resulted in the obscene articles being in fact published by others using the appellant’s Telegram account) did not constitute a reasonable doubt.

35.The magistrate made further considerations and said as follows[10]:

“ 40(f)…. Could anyone, in any way, misappropriate the defendant’s mobile phone number, steal the information stored in the mobile phone and then publish it on Telegram? The Court considers that all sorts of peculiarities can happen in the world. Yet, in the circumstances of the present case, the Court cannot think of anyone having any motives and ways to misappropriate the defendant’s mobile phone without his knowledge to open the Telegram account in question and publish the photos and footage concerned. A huge amount of information is stored in a person’s mobile phone, with some likely to be extremely valuable. The Court cannot think of anyone making an effort to misappropriate someone else’s mobile phone just to publish some private photos and footage that are extremely important to the persons involved but are absolutely meaningless to the others. Furthermore, the person who published had deliberately published the wedding photo of PW1 and PW2 before he published the above photos and footage. It is thus seen that the person who published definitely knew PW2; the act of publication was to cause deliberate harm to PW2. It was totally not a random prank nor an aimless act;

40(g). There has never been any evidence before the Court that the defendant’s mobile phone had been stolen or had been misappropriated. The Court considers that the possibility of the defendant’s mobile phone being misappropriated does not exist; and

40(h). More importantly, it has all along been the defence case that the defendant had never had any intimacies with PW2, and let alone possessed Photo 1, Photo 2 and Footage 1. Thus, the above assumption considered by the Court that the mobile phone was misappropriated for the publication is not the defence case at all. Upon further consideration, the Court is also certain that the defendant’s mobile phone has never been misappropriated.” (Italics added)

36.Thus, the magistrate took the view that the only and irresistible inference the Court could draw must certainly be that the appellant used his Telegram account (with the user name “tititata123”) to publish the obscene articles involved in Charges 1 to 4. The prosecution had proved beyond reasonable doubt that the appellant committed all the offences in the present case.

E.  Grounds of appeal (against conviction)

37.Mr Selwyn Yu SC and Mr Mak Kin-ming advanced five grounds of appeal against conviction, which could be categorised into three aspects:

i.  The magistrate had improperly considered the evidence, which resulted in the erroneous drawing of inference (The first and second grounds of appeal against conviction);

ii.  There were excessive judicial interventions at trial (The third ground of appeal against conviction); and

iii.  Section 22A of the Evidence Ordinance is still applicable in the present case (The fourth ground of appeal against conviction).

38.The fifth ground of appeal against conviction is that taking all the circumstances into consideration, the conviction of the appellant is unsatisfactory and/or unsafe.

39.I will first deal with the fourth ground of appeal.

E1.  Is section 22A of the Evidence Ordinance still applicable?

40.The fourth ground of appeal against conviction is that the magistrate erred in his reliance on the digital evidence exhibits. Where section 22A of the Evidence Ordinance is applicable, the magistrate erred in failing to comply with the requirements stated therein, which was in breach of the hearsay rule. This includes:

(a)  The magistrate erred in allowing the digital evidence that had not been exempted under section 22A of the Evidence Ordinance (that is, hearsay evidence) to be admitted in evidence, and in relying upon such digital evidence to draw an erroneous inference; and

(b)  The magistrate relied upon the digital evidence exhibits, namely exhibits (i) Screenshot T14 of P7a (that is, the screenshot showing the photo involved in Charge 1), (ii) Screenshot T17 of P7a (that is, the screenshot showing the photo involved in Charge 2) and (iii) the footage in P8 (that is, the video involved in Charges 3 and 4 in the records of Y) to consider the scenes depicted therein were genuine, and then the magistrate, without the support of other substantive evidence, wrongly inferred that the appellant (i) had had sexual relationships with X, and taken these photos and footage clandestinely during the process and (ii) retained these photos and footage. Where section 22A of the Evidence Ordinance was applicable, the magistrate further erred in failing to analyse the weight to be attached to “Photo 1, Photo 2 and Footage 1”[11]pursuant to the requirements under section 22B(3)(b) of the Evidence Ordinance.

41.Having set out the relevant legal principles[12], the appellant submitted that the purpose of the prosecution’s reliance on the screenshots and the contents made by Y (including the above screenshots T14, T17, the footage in P8 and its screenshots) was obviously to show the Court that the scenes or the contents shown therein were genuine. The magistrate precisely relied upon the genuine scenes and contents shown in the screenshots of the digital evidence to infer that the appellant had clandestinely recorded the sexual acts he had with X, retained the photos and footage, and subsequently published the articles involved in the present case in the Telegram group. Nonetheless, since such evidence was not exempted under section 22A of the Evidence Ordinance, it was in fact hearsay evidence which could not be produced as evidence. The appellant submitted that the magistrate had misconstrued section 22A of the Evidence Ordinance in this regard, and subsequently erred in finding that the relevant screenshots and footage were not subject to the relevant rules under the Evidence Ordinance.

E1.1.  Is section 22A of the Evidence Ordinance still applicable? The respondent’s reply

42.Mr Charles Lee, Senior Public Prosecutor acting for the respondent, replied that the hearsay rule was not applicable in the present case. And thus, section 22A of the Evidence Ordinance was not applicable in the present case either. It was only when parties to the proceedings adduced a document to prove that the statements contained therein were true and accurate that the hearsay rule was engaged to prevent the document from being admitted in evidence. This did not arise in the present case.

43.The respondent submitted that both Y and X testified in court and recounted their own personal experiences. No hearsay evidence was involved. Y’s evidence was that he saw on Telegram that the articles involved in the present case were released by a Telegram account. He also saw the mobile phone number “9838 9604” and the display name “Thomas Lau” on the information page of the said account. Y was entitled to testify on what he saw and to provide the relevant screenshots and footage he made to support his version of the event. The evidence of the two prosecution expert witnesses was to help explain why Y saw what he saw. No hearsay evidence was involved. The appellant was convicted because of the only reasonable inference drawn from all the evidence in the present case. No hearsay evidence was involved.

44.Moreover, the respondent added that the relevant photos and footage (namely, Y’s screenshots and footage), which did not contain any statements per se, were indeed pure physical evidence. He cited the Court of Appeal’s observation in paragraph 32 of HKSAR v Fung Hoi Yeung[13]：

“… We think it is arguable that a photograph（or film）is not ‘a statement contained in a document produced by a computer’ for the purposes of section 22A…”

E1.2.  My consideration

45.Section 22A of the Evidence Ordinance is an exception to the hearsay rule. Thus, it is only when the hearsay rule is applicable that section 22A of the Evidence Ordinance may come into play.

46.As to the hearsay rule, the Court of Appeal cited in paragraph 47 of Fung Hoi Yeung the following short extract from the judgment of the Court of Final Appeal in HKSAR v Lau Shing Chung Simon[14]:

“28. The reach of the rule may more readily be understood if the rationale for it were better appreciated. The rationale is a concern for the probative value of out-of-court statements. Sometimes the circumstances in which an out-of-court declaration is made are deemed to confer sufficient inherent reliability as to render the declaration admissible to prove the truth of what is declared and it is upon that reasoning that the common law and statutory exceptions are based. In other circumstances, however, the probative value of evidence of a fact in issue is said to be materially undermined where it cannot be tested by cross-examination and it is the inability to cross-examine the declarant to test the accuracy of his out-of-court statement that lies at the heart of the general rule.” (Italics added)

47.In the present case, the appellant complained that there was an issue of admissibility in respect of Y’s screenshots and footage. Those were records made by Y himself. Y testified in person. He stated what he saw, showed the Court the records he made, and was cross-examined on his evidence. Thus, there was in fact no basis to support the complaints on hearsay evidence or the admissibility of the above exhibits.

48.It is even more difficult to understand that Mr Mak Kin-ming, the then counsel for the defence, agreed at trial that section 22A of the Evidence Ordinance was not applicable in the present case[15].

49.As to the issue of weight raised by the appellant, the appellant submitted that the magistrate erred in his consideration of the weight to be attached to “Photo 1, Photo 2 and Footage 1”. As Y was not the maker of “Photo 1, Photo 2 and Footage 1”, the magistrate should not have overlooked section 22B(3)(b) of the Evidence Ordinance and had erroneously attached full weight to “Photo 1, Photo 2 and Footage 1”. The appellant has seemingly mixed (I) “Photo 1, Photo 2 and Footage 1” up with (II) Screenshot T14 (that is, the screenshot showing Photo 1), Screenshot T17 (that is, the screenshot showing Photo 2) and the footage in P8 (that is, Footage 1 in Y’s records). Y is not the maker of (I), but he is the maker of (II). The prosecution case relied on the evidence of Y and (II). What the magistrate considered was the weight to be attached to the evidence of Y and (II), but not to “Photo 1, Photo 2 and Footage 1”.

50.This ground of appeal is not made out.

E2.  The first and second grounds of appeal

E2.1.  Was the evidence improperly considered, which resulted in an erroneous inference drawn?

51.In the first ground of appeal against conviction, the appellant submitted that the magistrate erred in failing to consider or to sufficiently consider the following evidence:

(a)  There was no evidence in the present case about the technical principles of the Telegram software which explained the way to link the mobile phone number of the appellant that Y alleged to have saved to the Telegram user name “tititata123”.

(b)  The Telegram software supported users in using the software on multiple platforms contemporaneously without the need to open new accounts.

(c)  The magistrate erred in considering non-existent evidence, such as the nature of the exhibit of screen voice recording and exhibit P2; and he did not deal with the discrepancies among the exhibits, such as the differences in the content of Screenshots T16 and T18 in exhibit P7a and the discrepancies in the lengths between Footage 1 in P8 with that shown in Screenshot 2 of P8a.

(d)  The magistrate failed to correctly evaluate the evidence favourable to the appellant, which included: the prosecution failed to extract the raw data of the screenshots and the footage; there were traces of “Photoshop” in some of the screenshots; and that the photo involved in Charge 2 had been in circulation on other social networking platforms as early as in 2017. It was highly probable that the appellant was not the only person in possession of that photo.

52.In the second ground of appeal against conviction, the appellant submitted that even if the appellant was the only person who could use the Telegram account in question, the magistrate still erred in finding that the appellant published the obscene articles involved in the present case. Mr Yu SC submitted that the magistrate failed to consider the definition of “publish” under section 2(4) of the Control of Obscene and Indecent Articles Ordinance. Under the definition, the prosecution had to prove in the present case the following elements in respect of non-physical articles:

(a)  The appellant had uploaded the articles involved in the present case onto the Telegram group in question through data transmission; and

(b)  The appellant had, through his upload, directly “distributed, circulated…” or “shown, played or projected” the articles involved in the present case to “the public or a section of the public” (that is, the members of the Telegram group).

53.The appellant submitted that the magistrate erroneously omitted the following facts or possibilities on this “improper basis”, which resulted in his erroneous conclusion that the appellant was the person who published the obscene articles involved in the present case:

(a)  For any member of a Telegram group to publish a message thereon, the message must first be uploaded onto the server of Telegram encrypted with MTProto protocol;

(b)  The administrator of a Telegram group could decide the right of publication of an individual group member; and

(c)  The appellant’s digital devices (including mobile phone) may have been accessed by others (with or without the appellant’s permission).

54.It can be seen from the submission of the appellant that regarding the grounds of appeal on this aspect, the appellant’s criticisms against the magistrate are indeed as follows:

(a)  In the present case, there was no evidence showing the appellant had registered or owned the Revgram application or a Telegram account. The magistrate should not assume the appellant had had a Telegram account merely based on the screenshots in Y’s mobile phone.

(b)  Although Y and PW6 explained in their evidence why Y could see the mobile phone number of the Telegram account with the user name “tititata123”, there was no evidence in the present case explaining the technical principles involved, such as how the Telegram software and the telephone directory of Y’s mobile phone were connected. Hence, the magistrate’s inference about the appellant registering a Telegram account with his mobile phone number lacked evidential basis.

(c)  When the magistrate analysed the possibility of the appellant’s mobile phone being misappropriated by others, he overlooked the fact that it was still possible for others to come in contact with the appellant’s electronic devices which were installed with the Telegram software and upload the articles in question in the circumstance that the appellant was not required to provide his own mobile phone number. The magistrate erred in giving no consideration to the possibility of the appellant’s mobile phone being accessed by someone else on the basis that such possibility was not part of the defence case.

(d)  It was improper for the magistrate to state in paragraph 39(g) of his Reasons for Verdict that, “the exhibit P2, i.e. the certificate issued by the telecommunications service provider, confirmed that the Telegram account publishing the aforesaid articles at the time of the incident was registered under the defendant’s mobile phone number.” The certificate issued by the telecommunications service provider could merely prove who registered the mobile phone number, but it could not prove the appellant had used his mobile phone number to register an account on Telegram.

(e)  In paragraph 28 of the Reasons for Verdict, the magistrate wrote, “The court believes that the mobile phone’s screenshots and screen recordings provided by PW1 were original information without being edited”. However, Y had never tendered any screen recordings as exhibits and he had only mentioned the existence of them when giving evidence.

(f)  The magistrate did not appropriately deal with the doubts arising from the exhibits: (1) Although the screenshots of T16 and T18 in exhibit P7a looked similar, there was a discrepancy, namely, where “share contact” was displayed in T16, “add to contact” was displayed in T18. The appellant contended that this meant Y had already saved the appellant’s mobile phone number in his mobile phone when he was capturing T16, but that the appellant’s phone number had not yet been saved when T18 was being captured. So, Y’s evidence was untrue and unreliable. (2) Footage 1 in P8 was 17 seconds long while the duration shown in Screenshot 2 of P8a was 15 seconds. (3) The defence expert witness pointed out that 7 screenshots might have been altered and the appellant submitted that what Y said in his testimony that the screenshots had not been tampered with was obviously inconsistent with the facts, rendering the evidence of Y untrue and unreliable.

(g)  In paragraph 40(f) of the Reasons for Verdict, the magistrate should not have adopted the logic that the person who published the wedding photo of X must know her and intended to hurt X, and then wrongly ruled that the appellant was in possession of X’s wedding photo and published them in the relevant group. In the present case, there was no evidence indicating the appellant had had X’s wedding photo.

(h)  The magistrate should not have ruled in paragraph 40(e) of the Reasons for Verdict that the appellant was the only one in possession of the obscene articles in question. The appellant submitted that Y testified that he had seen the photo involved in Charge 2 on Facebook as early as 2017. It meant that the photo had already been in circulation on the social networking platform in 2017.

(i)  The appellant read the conclusion in paragraphs 40 and 41 of the Reasons for Verdict as the magistrate found that the appellant became the “person who published” under the Control of Obscene and Indecent Articles Ordinance Section 2(4) once the articles in question, which were in the appellant’s possession, appeared on Telegram and were available for viewing by the Telegram group members. The appellant submitted that there was no evidence substantiating that the appellant did upload the articles in question via the electronic devices in his possession to the Telegram server through data transmission. In the present case, the prosecution was further required to provide evidence to prove whether the Telegram server would automatically publish the articles in question in the groups in question upon receipt of them, whether the Telegram server did publish the articles in question to the groups in question, and the control over publication a Telegram group administrator had. The appellant submitted that if prior approval from the Telegram group administrator was required for speaking in the group, then even if the appellant had uploaded the articles in question to the Telegram server, the person who published was in fact the group administrator and not the appellant.

55.Less than two weeks before the hearing, the appellant filed a submission in reply. The appellant added that in the present case the prosecution lacked evidence about the explanation on the technology of Revgram, such as the operational principles of Revgram, how Revgram obtained information from Telegram, how Revgram edited the information obtained from Telegram, what information was edited by Revgram and so on. At the appeal hearing, the appellant contended that the evidence was essential as the content on Telegram might have been altered by Revgram.

E2.2  Reply from the respondent

56.The respondent submitted that the evidence in the present case was sufficient and overwhelming, and the magistrate’s finding of guilty was correct. In respect of the criticisms against the magistrate mentioned in the first and second grounds of appeal by the appellant, the respondent put forward the following arguments in rebuttal:

(a)  Even if, as alleged by the appellant, there was no evidence that the appellant had previously registered or had the application of Revgram and Telegram account, etc., it did not mean that the court could not draw the inference after taking into consideration all the relevant evidence.

(b)  These issues raised by the appellant did not affect the adequacy of the prosecution evidence at all. The crux of the present case was whether the magistrate could infer from the evidence before him that the appellant was the one who published the articles in question.

(c)  In paragraphs 40(c) to (e) of the Reasons for Verdict, the magistrate had already taken into consideration that Telegram was able to support users to use the software through various platforms at the same time. Citing HKSAR v Yim Yu Hang and Others (Reasons for Ruling on Admissibility of Whatsapp Messages)[16], the respondent was of the view that in the absence of any substantive evidence put before the court by the defence in the present case, not only was the analysis of the magistrate reasonable and fair, but also it was unnecessary for the magistrate to consider the possibility of the Telegram account of the appellant being used by someone else. Although the appellant was entitled not to give evidence and the court would not therefore draw any inference unfavourable to him, this meant that the appellant had no evidence to rebut, undermine or explain the prosecution evidence. The magistrate was not required to consider the different fanciful possibilities from the defence.

(d)  In respect of the complaint about the statement of the magistrate on P2, the certificate from the telecommunications service provider, in paragraph 39(g) of the Reasons for Verdict, the respondent argued that the context had to be considered as a whole. The magistrate had already pointed out in paragraph 39(a) that the Telegram account was registered under the mobile phone number “9838 9604”. In paragraph 39(g), the magistrate pointed out that the mobile phone number “9838 9604” used for registering the Telegram account was, as substantiated by the certificate from the telecommunications service provider, indeed the defendant’s mobile phone number.

(e)  Although the appellant stated that Y did not provide screen recordings, this complaint would not materially affect the rationality of the magistrate’s ruling on facts since the magistrate had made the relevant findings of facts after considering all the evidence (including the screenshots and video recordings being Y’s records).

(f)  Regarding the discrepancies on the screenshots and video recordings mentioned by the appellant:

i.  First, the respondent said there was no evidence in the present case that Y or other persons had edited any screenshots or video recordings. The defence expert witness was of the view that the word “Photoshop” appeared in the metadata of the 7 screenshots and hence the 7 screenshots might have been edited. Yet, this did not confirm that the 7 screenshots had been edited. This point had already been clarified at trial. Regarding the importance of the 7 screenshots as evidence in the present case, the respondent stated that these screenshots were not the more crucial ones in the case. Moreover, the other screenshots which did not have the traces of “Photoshop” as alleged were of the majority of Y’s records and included some of the contents of those 7 screenshots.

ii.  Second, as to the discrepancies between T16 and T18 in the exhibit P7a, the respondent replied that it was totally unfair to attack Y on this point since the defence did not cross-examine Y on this regard during the trial at all. In respect of the appellant’s complaint about the magistrate interrupting the cross-examination of PW6 by the defence, the respondent submitted that the magistrate was just seeking clarification on why the defence did not cross-examine Y in this regard. Thereafter, the defence was able to continue putting questions to PW6 about the relevant issues.

iii.  In respect of the 17-second video recording involved in Charge 4 only showed 15 seconds in the screenshot, the respondent argued that it was totally not fair as the defence did not cross-examine Y in this regard either. In addition, it was absolutely possible that there would be a reasonable explanation about the alleged discrepancy, such as the time “00:15” shown on the screenshot was the remaining playing time, but not the total duration of the video recording.

(g)  The respondent submitted that even if X and Y did not have that wedding photo, it did not mean the appellant could not get that photo via other means. The magistrate was entitled to deduce from the evidence in the present case that the appellant had published the wedding photo of X and Y.

(h)  On the evidence, the photo involved in Charge 2 had not been “in circulation” on other social networking platforms in 2017 as claimed by the appellant. When Y gave evidence at trial, he said that in 2017 he was harassed by accounts of two other social networking platforms and received several photos sent by the Facebook account, including a photo same as the photo involved in Charge 2 but a more complete one. That Y had received the photo in 2017 was radically different from the claim that the photo had already been in circulation. There was no evidence in the present case suggesting the photo was circulated to irrelevant persons.

(i)  In respect of the complaint in the second ground of appeal by the appellant that there was no evidence proving the appellant did upload the articles in question via data transmission, the respondent responded that:

i.  There was expert evidence in the present case explaining the operation of Telegram, including that Telegram was a cloud-based instant messaging system and users could send messages, photos, videos, etc. through Telegram.

ii.  Similarly, the court could take judicial notice of the basic operation of Telegram.

iii.  Hence, the magistrate was definitely entitled to draw the inference and ruled that a person had used the Telegram account with the user name “tititata123” to publish the articles in question in the relevant group on Telegram via electronic transmission. The magistrate was entitled to infer from the evidence of the present case that the appellant was the person who manipulated the Telegram account and published the articles in question.

iv.  The magistrate had already pointed out the issue of the present case during the trial and stated that it was not about the transmission, but whether there was sufficient evidence for the court to draw the only inference of guilt.

v.  The matters mentioned in the second ground of appeal by the appellant were only problems arising from the individual aspects of evidence, such as the police could not unlock the appellant’s mobile phone to examine its content. However, after taking into consideration the overall evidence, the magistrate was entitled to infer from other evidence that the appellant was the one who published the articles in question.

E2.3   My considerations

E2.3.1  The 2^nd (and 1^st) ground of appeal against conviction: Was the prosecution required to adduce additional evidence on the technology?

57.The complaint of the appellant that the prosecution had no evidence providing further technical explanation on how Telegram was operated and how data was transmitted appears to be nit-picking. In the present case, the prosecution had already adduced evidence to prove:

(a)  Y saw that the Telegram account with the user name “tititata123” published the obscene articles in question on Telegram; and

(b)  The opinion of the prosecution expert witness was that Telegram was a software providing cloud-based instant messaging service.

58.I am of the view that if these grounds of the appellant were made out, this would give rise to this paradox: If a witness of a murder (or other crimes), who has taken photos at the time of the incident with a camera on his person, attempts to tender the photos as exhibits when giving evidence in court, the prosecution has to adduce evidence to explain the operational principles of the camera in details.

59.On the other hand, the appellant complained of the prosecution’s failure in adducing evidence to explain the operational principles of Revgram, how Revgram obtained information from Telegram, how Revgram edited the information obtained from Telegram and what information had been edited by Revgram. At the appeal hearing, the appellant submitted that these were necessary because the prosecution needed to prove Revgram would not edit the content sent to the Telegram server.

60.In fact, the evidence adduced by the prosecution is sufficient to prove that. The prosecution expert was of the view that, unlike that of the Telegram client, the Telegram server was self-hosted by Telegram and did not have an open-source code. Therefore, even though Telegram clients having the open-source code might have various interpretations, i.e. different modified client versions, such as Revgram, all these Telegram clients of different versions communicated with the same Telegram server.

61.Revgram is merely a modified Telegram client. The modification made by it to the official client only affects the experiences of the users, such as increasing the operating speed of the client and bypassing the verification system administered by the official client. There is no evidence in the present case to show that Revgram would make any alterations to the contents sent to the Telegram server.

E2.3.2  Would the Telegram group administrator be the person who published?

62.At the appeal hearing, the appellant alleged that the person who published the obscene articles in question was, in fact, the Telegram group administrator. When the administrator was requested by Y to delete the articles in question, the administrator did delete them from the group. From this, the group administrator had great power to decide what kinds of content were allowed to be published in the group. Therefore, even if the appellant was the one who uploaded the articles in question to the Telegram server, the person who published the articles in question should be the Telegram group administrator.

63.In fact, the answer to this suggestion has already been given by Mr Yu SC in his own written submission. It is stated therein that if a prior approval of the Telegram group administrator was required for speaking in the group[17], then even if the appellant was the one who uploaded the articles in question to the Telegram server, the one who published those articles would not be the appellant but the group administrator. It is certain that there is absolutely no evidence in the present case to suggest that prior approval of the Telegram group administrator was required for speaking in the group irrespective of whether this suggestion is correct or not.

64.In fact, the evidence of the present case is the exact opposite of the above assumption. The evidence shows that the articles in question were already published in the relevant group without requiring the prior approval of the group administrator. The group administrator deleted the articles in question only after being notified by Y. Therefore, the conclusion that the Telegram group administrator was the one who published would not be reached on the evidence.

E2.3.3  The 1^st ground of appeal against conviction: Did the magistrate err in drawing the inference?

Was the mobile phone or the mobile phone number misappropriated?

65.In paragraphs 7(1) and (2) of his submission, the appellant complained that the magistrate had overlooked the fact that it was still possible for others to come in contact with the appellant’s electronic devices installed with Telegram software and upload the articles in question in the circumstance that the appellant was not required to provide his own mobile phone number to others. The appellant appears to be saying that the magistrate has failed to deal with the situation where the appellant’s mobile phone, not his mobile phone number, was used or misappropriated by others. In fact, the magistrate has already considered this situation in paragraphs 40(f) and (g) of the Reasons for Verdict (see the excerpt in paragraph 35 above, in particular the italicised parts). However, the expression of “mobile phone number” used at the beginning of 40(f) should actually read “mobile phone”. It is likely that this typographical error has given rise to the appellant’s misunderstanding.

How can the certificate of the telecommunications service provider prove that the appellant registered the Telegram account?

66.The certificate of the telecommunications service provider itself cannot, of course, prove that the appellant has registered the Telegram account. The appellant’s interpretation of the magistrate’s statement appears to be another misunderstanding. It was stated by the magistrate in paragraph 39(g) of the Reasons for Verdict that “according to P2, i.e. the certificate issued by the telecommunications service provider, it is confirmed that the Telegram user account which published the articles in question at the material time was registered in the appellant’s mobile phone.” The focus of this statement should be on the words stating that it can be confirmed, according to the certificate issued by the telecommunications service provider, that the mobile phone number for the registration of the Telegram user account which published the articles in question at the material time was exactly the appellant’s mobile phone number.

67.The first and the second grounds of appeal are not made out.

E3.  Excessive judicial interventions

68.The third ground of appeal against conviction is that there were excessive interventions made by the magistrate at the trial, showing a real danger that he was biased and causing an informed bystander to think that the appellant had not had a fair trial. The appellant alleged that the excessive interventions made by the magistrate included the following:

a.  The magistrate’s interference with the cross-examination conducted by defence counsel apparently caused unfairness to the appellant.

b.  The magistrate hindered defence counsel from stating the appellant’s case fully and fairly.

c.  The magistrate actively participated in the examination-in-chief and the cross-examination of the prosecution and defence witnesses, and even took up the leading role at the trial. By his conduct, he seemed to have assumed three roles and was a director, performer and judge all rolled into one. The appellant had not had a fair adversarial trial as a result of the number of interventions made by the magistrate in the course of the trial.

69.In the submission, the appellant cited the case of HKSAR v Tsang Wai Man[18], which set out the legal principles of the propriety of questioning of witness by a judge, pointing out that whether a magistrate’s excessive interference had caused unfairness was a matter of perception, including whether the appellant was able to state his case fully and fairly. Apart from the above several aspects, the appellant also submitted that the magistrate had, on a number of occasions, assisted the prosecution witnesses in organising their evidence, however, he did not likewise assist the defence witnesses.

70.In order to show that the magistrate’s alleged over-participation or bias at the court trial sufficed to cause a fair-minded and informed bystander to have an impression that it was impossible for the appellant to have a fair trial, the appellant listed out in his submission his numerous complaints about the magistrate’s judicial interventions. In an annex he submitted, the appellant even provided the statistics on the number of the magistrate’s interventions (1514 times), suggesting that the number was over half of the total number of questions asked in terms of proportion. The appellant said that such a high degree of participation already reflected that the magistrate had entered the “arena”, contrary to his role of an arbiter of objective facts, and seriously undermined the fairness of trial safeguarded under the adversarial system of criminal justice.

E3.1.  Respondent’s reply

71.The respondent submitted that the magistrate had the duty to ensure that he was able to grasp the evidence and ask questions about the matters that were neglected. It was necessary for the magistrate to ask questions at times to assist him in assessing the evidence. The respondent also cited cases, including Tsang Wai Man, in support of his contention.

72.Regarding this ground of appeal, the respondent agreed that the ultimate question for the Court to consider was whether the magistrate’s conduct would have caused an informed bystander listening to the case to conclude that the appellant had not had a fair trial. The respondent cited the case of HKSAR v Lee Vernon[19], in which the Court of Appeal expressed that an informed bystander listening to the case would not necessarily have concluded that, by reason of the judge’s numerous interventions, the appellant had not had a fair trial.

73.The respondent also referred to the Court of Appeal’s indication in both HKSAR v Hon Ming Kong[20] and HKSAR v Kelvin YC Leung[21] that: The Court has the duty to be firm in case management in order to avoid the unnecessary waste of court time and limited resources. Prolonged trials not only waste limited resources, but also add to the tension and distress of victims, defendants and witnesses. Criminal cases shall be tried justly and efficiently for the public interest. When cases are heard, time shall not be wasted on dealing with unnecessary peripheral matters which are really not an issue.

74.The respondent also in his submission responded one by one in detail to the complaints about the magistrate’s judicial interventions set out by the appellant. It was the respondent’s conclusion that on the whole, the questions asked by the magistrate were just for him to get a better grasp of the witnesses’ evidence so as to assist him in making the findings of facts. The many interventions made by the trial court were for managing the case more efficiently in order to avoid unnecessary waste of the limited and valuable court resources, especially against the background of the pandemic at that time.

75.The respondent submitted that the magistrate’s approach did not hinder the defence from stating its case fully and fairly. The magistrate adopted an impartial attitude when asking questions, which would not have caused a reasonable bystander to have an impression that the magistrate was favouring any one side.

E3.2.  Legal principles on judicial interventions

76.There is no dispute from both the appellant and the respondent over the relevant legal principles.

77.It is stated in the case of HKSAR v Tsang Wai Man by the Court of Appeal that:

“ 13. In an adversarial system, the role assumed by a judge in a trial is primarily one of listener. Findings have to be arrived at by a judge on questions in issue based on the evidence and submissions adduced by both parties. A judge should not over-participate in the questioning of witnesses lest he might give an impression of favouring any one side.

14. The above fundamental principle is beyond question. However, as the judge of fact, a judge must hear sufficient evidence on the questions in issue before he can come up with the findings on the facts.

15. Under normal circumstances where both parties are represented, counsel from both sides would have elicited from witnesses all relevant evidence through examination-in-chief, cross-examination and re-examination, thereby allowing the judge to have sufficient evidence to reach his findings on the questions of fact at issue.

16. However, very often, things go athwart. Due to factors like different perceptions of matters, tactics deployed in the course of the trial, the demeanour of witnesses when answering questions, the competency of individual counsel etc., a judge may not necessarily be able to obtain the requisite information through the examination-in-chief, cross-examination and re-examination of witnesses by counsel on both sides, rendering it necessary for the judge to put questions directly to witnesses in order to get a better grasp of the evidence before reaching his findings.

17. So long as a judge adopts an impartial attitude when questioning a witness such that the reasonable and informed bystander listening to the case would not have had the impression that the judge is showing favour to one side, the conduct stated above gives no cause for much criticism. Not only is there nothing to be said against it, it is also reasonable and necessary, albeit a more proper way of obtaining the requisite information is to leave the questioning of witnesses to counsel on both sides.”

78.For the issue of the propriety of questioning witnesses by a judge, the Court of Appeal cited the case of R v Yeung Mau Lam[22]:

“19. In his judgment at page 473 Power JA made the following observations:

‘We are satisfied that the authorities establish the following five propositions apposite to our considerations:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the “arena” [instead of remaining objective];

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.’ ”

E3.3  My consideration

79.Regarding the appellant’s complaints about excessive judicial interventions, the respondent responded to them one by one at considerable length in his submission. [23]

80.Upon reading the relevant trial transcript, I agree with the respondent’s reply / explanation.

81.At the appeal hearing, the appellant emphasized that one should consider the overall circumstances to determine whether the magistrate would have caused the bystander to have an impression that there was unfairness at trial. I am of the view that the magistrate was sometimes impatient and his wordings were sometimes relatively “straightforward” and not euphemistic at all, but he did not give an impression that he showed favour to any one side or make it impossible for the defence to present in full the facts of its case. Counsel of both parties were able to finish their questions ultimately (unless the questions were fundamentally improper) despite the magistrate’s interference. On the whole, the magistrate gave the impression that he was very fair.

82.As to whether the defence counsel would have felt under pressure and was thus unable to present the defence case in full because the magistrate was “fierce-looking”, I am of the view that a bystander should reasonably expect counsel to have fairly good psychological quality. Moreover, I do not see that the magistrate was “fierce-looking”. He was speaking in a very gentle tone.

83.The circumstances in the present case cannot be compared with those in Fung Hoi Yeung. In that case, the judge misunderstood the evidence and intervened at an inappropriate time, and therefore, mistakenly believed that the rules of hearsay evidence were applicable. Hence she disallowed the defence to ask the witness crucial questions in the presence of the jury, making it impossible for the defence to present its case. The defence counsel of that case tried to correct the judge’s mistakes on a number of occasions; this included returning to the court after a weekend and to continue to persuade the judge, but his efforts were in vain in the end. Therefore, the appeal of that case was allowed.

84.This ground of appeal is not made out.

Conclusion

85.Upon a “re-trial” in the appeal, I find that the prosecution has proved beyond all reasonable doubt that the appellant committed the 4 charges involved in the case. I dismiss the appellant’s appeal against conviction.

F.  Reasons for sentence

86.In sentencing, the magistrate noted that the appellant, then aged 35, not only had no criminal record, but he also had a successful career and was married. He was the father of a two-year-old son and the breadwinner of his family. In view of such decent background of the appellant, the magistrate thought that the sentencing was rather difficult as what the appellant did in the present offence was deplorable. The magistrate considered the harm caused to X and Y by the appellant's acts and found that there were at least two aggravating factors in this case:

a.  the appellant clandestinely recorded the sexual intercourses and eventually published the photos and footages without X’s permission; all these involved a serious breach of trust; and

b.  the appellant’s acts in the present case were not the result of a momentary impulse. Before publishing the obscene articles in question, he had already published the wedding photo of X and Y, which showed a certain degree of planning on the appellant’s part. Moreover, after the video involved in Charge 4 published by the appellant was deleted by the group administrator, the appellant published the same footage again within a short period of time. It showed that the appellant was very determined to publish the obscene articles in question.

87.As a result, the magistrate adopted 12 months’ imprisonment as the starting point for each charge. Taking into account the appellant’s good background and family circumstances, the magistrate gave a reduction of 3 months for each charge. Having considered the totality principle, the magistrate took the view that the appellant’s repeated commission in the present case had caused aggravated harm to the victims. As such, he ordered that one month’s imprisonment of each of the sentences for Charges 2 to 4 to run consecutively with the sentence for the other charge. The appellant was ultimately sentenced to a total of 12 months' imprisonment.

F1.  Appeal against sentence

88.On appeal against sentence, the Perfected Grounds of Appeal set out two grounds of appeal. Firstly, the magistrate failed to consider fully or at all the “one-transaction” principle and its correct application. Secondly, the magistrate erred in taking into account that the appellant published the wedding photo of X and Y in the Telegram group in question. Therefore, the total sentence of 12 months’ imprisonment was manifestly excessive.

89.In respect of the first ground of appeal against sentence, the appellant argued that, on the basis of the “one-transaction” principle, if a defendant committed two or more offences of the same kind out of the same incident, the court should impose concurrent sentences of imprisonment for these charges. In the present case, as the magistrate said that the appellant had published the articles in question “one after another within a short period of time”, so he should have regarded the four charges to be arising out of the same incident. However, the magistrate considered that the appellant “committed the offence repeatedly” and ordered part of the sentences for Charges 2 to 4 to run consecutively with that for Charge 1. This was wrong in principle.

90.The appellant alleged, in the second ground of appeal against sentence, that there was no factual basis for the magistrate to find that the appellant had published the wedding photo of X and Y. The appellant submitted that X's evidence was that she did not send the wedding photo to the appellant and that the magistrate never made a finding of fact as to whether the appellant published the wedding photo. Therefore, the magistrate may not draw an inference that the appellant had committed the offences “with a certain degree of planning and order” on this basis.

F2.  Respondent's reply

91.Regarding the first ground of appeal against sentence, the respondent did not agree that the four charges in the present case were part of one transaction. The respondent argued that each charge was separate and independent, and it was absolutely unnecessary for the magistrate to order the sentences for the four charges to run concurrently. Moreover, the magistrate adopted a lenient approach to the appellant in that he only ordered part of the sentences for Charges 2 to 4 to run consecutively with that for Charge 1.

92.For the second ground of appeal against sentence, the respondent argued that the magistrate held that the appellant was the person who used the Telegram account (user name “tititata123”) to publish the articles in question. As the evidence also showed that the Telegram account published the wedding photo of X and Y, the magistrate had the full factual basis to find that the appellant published the wedding photo.

93.Having considered that the maximum term of imprisonment for each charge is three years, that there are no sentencing guidelines, and the relevant factors in the present case, the respondent submitted that the magistrate's sentencing was not wrong in principle or manifestly excessive.

F3.    My consideration

94.I find that the magistrate had properly considered the circumstances of the case and the aggravating factors. What the appellant did was indeed deplorable and did cause harm to X and Y.

95.I do not agree that the four charges were of “one transaction”. The appellant clearly published the articles in question separately and independently. It was appropriate for the magistrate to sentence the appellant to 12 months' imprisonment. He did not err in principle and the sentence was not manifestly excessive.

96.I am of the view that, even if the four charges could be said to be of “one transaction”, the sentence imposed on the ground of “one transaction” would not be less than 12 months' imprisonment.

97.The appellant's appeal against sentence is dismissed.

Conclusion

98.For the above reasons, the appellant's appeal against conviction and sentence is dismissed.

Mr Charles Lee, Senior Public Prosecutor, of the Department of Justice, for the HKSAR, the respondent.

Mr Selwyn Yu, SC, and Mr Marco Siu, instructed by Littlewoods, for the appellant.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.