HKSAR v. Easy Finder Ltd and Others

HCMA 1125/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1125 OF 2007

(ON APPEAL FROM KTCC 7416/2006)

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Before: Deputy High Court Judge Line in Court

Date of Hearing:  29 April 2008

Date of Judgment:  29 April 2008

Date of Reasons for Judgment:  2 May 2008

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REASONS   FOR   JUDGMENT

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1.This is an appeal by way of case stated against the dismissal, by Gary Lam Esq. Magistrate, of an information laid against the three respondents under section 3 (2) of the Prevention of Child Pornography Ordinance, Cap 579.

2.His material findings of fact were these:

“(a)   On 21 June 2006, a feature article titled “14 Cream (14-year-old Cream Just Became Ripe)” relating to Miss Lee Wan, Renee, together with photographs depicting her, were published in issue number 752 of a weekly magazine named Easy Finder (“the magazine”).

(b) The 1^st respondent was the publisher, whereas the 2^nd respondent, an editor (carrying the title as Chief Editor, though there was evidence that she was on sick leave when decisions relating the publication of the feature article were made), and the 3^rd respondent, printer of the magazine at all material times.

(c) A young local female pop singer, Miss Lee Wan, Renee (“Lee”), aged 14 when the photographs were taken, was the subject of the feature article and was depicted in various photographs published on the front cover, pages 25, 42, 43, 44 and 46 of the magazine.  

(d) Lee had clothes on in all 4 photographs published on the front cover, pages 25, 43 and 44 of the magazine.  Lee was wearing a ½-inch thick, flesh colour, self-adhesive, silicone bra throughout the entire photo-shoot.

(e) In respect of the photographs which appear on the front cover, pages 25, 42 and 43 of the magazine, the upper garments (including portions near and on the chest area) of Lee were obviously dampened. 

(f)  PW1 Madam WONG Kit-ling (Lee’s mother) and Lee’s manager (a Mr. CHIU) were present throughout the photo-shooting session which took place outdoor in Tai Po on 17 June 2006.

(g) For the photograph published on page 42 of the magazine, although there is a small shaded area on Lee’s left breast which resembled the natural colour of aureole or suggested that her aureole is revealing, there is no such shaded area appearing on her right breast.  Also, Lee was wearing a silicone bra throughout the photo-shoot, which made the revealing of her breast or aureole practically impossible.  I have also had the benefit of viewing the actual photographs of LEE posing in the same outfit (namely Photos 22 to 25 in Exhibit D1).  They have more or less the same visual effect.

(h) Based on the evidence about the photo-shooting process, there was nothing sexual involved in it.  There was also no evidence that any person involved had any sexual intention.

(i)  The feature article in question described how Lee had joined the entertainment business, the performing jobs she had done, her upbringing as well as her typical daily routines.  There was no portion which could be considered even as remotely sexual, save the following questionable captions or phrases :

(i)  “Just became ripe” (初熟 ) (Front cover, pages 25 and 42);

(ii) “With a pretty face and a mature body, every part (of her) sent out the flavour of a young girl!” (標致面孔再加初熟身段，處處誘發少女氣息！) (2^nd paragraph, right column, page 42);

(iii) “Renee’s beautiful face has not only attracted young fellows but has even caused (her) to become the prey for a perverted bloke.” (精緻五官除了吸引靚仔外，Renee更惨成變態佬獵物。) (Middle column, page 46); and

(iv)    “How can Renee being such a young pretty girl who has just become ripe, possibly attract only the middle-aged blokes?” (初熟美少女Renee，又豈止吸引麻甩佬？) (Middle column, page 46).

(j)  The article and the 4 photographs appearing on the front cover, pages 25, 43 and 44 of the magazine read together as a whole did not carry any sexual context.”

Based on the findings of fact stated above, I found the appellant had not proved beyond a reasonable doubt that any of the said 4 photographs amounted to “a visual depiction of the breast(s) of Lee in a sexual manner or context”.  I therefore acquitted all 3 respondents of the charge.

3.The following questions were posed for this Court to answer:

“(1)   Whether I was correct in ruling that the test in Sharpe was the proper test to be applied in interpreting the term “child pornography” for the purpose of PCPO?

(2) When determining whether the photographs in question were depictions of the breast(s) of a female depicted in a sexual manner or context, whether I was correct in holding that it was sufficient if I could find as a fact that any of the said photographs was a depiction of the shape or outline of a breast or aureole, and that there was no need to find that it was a depiction of an exposed breast?

(3) When determining whether the photographs in question were depictions of the breast(s) of a female person depicted in a sexual manner or context, whether :-

(a) I was correct to take into account (i) their creation process; and (ii) the textual contents of the article, of which such photographs form a part? and

(b) I have misdirected myself in respect of the aforesaid matters?

(4) Whether my interpretations of the ambit of the phrases “the breast(s) of a female person”, and “in a sexual manner or context” were consistent with the legislative intention in enacting PCPO?

(5) Whether I was correct in ruling that the 4 photographs in this case, namely, those appearing at (a) the front cover, (b) page 25, (c) page 42, and (d) page 43 of the magazine, were not “child pornography” as defined in PCPO, and in acquitting the respondents of the charge?”

4.In order for this appeal to succeed the appellant had to establish before me that no reasonable magistrate could have come to the conclusion that the relevant images were not child pornography as defined in the Prevention of Child Pornography Ordinance.  Whilst there was no formal abandonment, senior counsel for the appellant in court made the concession that there was no real prospect of doing so and that they were not seeking to overturn the finding of the magistrate in this regard.

5.In my judgment that concession was realistic.  The young girl pop singer in the images at all times wore a top of such a nature and extent that no reasonable person could say her breasts were depicted.  However, the disposal of this appeal does not depend on my assessment of the images and I emphasise that it is to be dismissed because the side that brought the appeal does not now seek to overturn the decision of the magistrate who decided that the images were not child pornography.

6.The definition of child pornography is contained in section 2 of the Ordinance, the relevant part of which required the appellant to prove “a visual depiction that depicts, in a sexual manner or context, the genitals or anal region of a person or the breast of a female person”.

7.The magistrate found that the images in question here simply did not depict the female breast in a sexual manner or context.  In my opinion, there was never any reasonable prospect of upsetting that finding.

8.Why this appeal was launched is therefore something of a mystery.  It seems that the point of the proceedings is now for me to give an opinion on matters that cannot affect the result.  It is not the function of the courts to resolve matters that are academic in the sense that they are non determinative.

9.I have been tempted merely to dismiss the appeal, giving no more reasons than I have thus far set out.  It is a matter of regret that the respondents have faced the continued accusation of being child pornographers for a further year since their acquittal when they were no such thing.  However, I am told that they would welcome the Court’s opinion on the issues that the appellant has raised.  It is thus that I will do as I have been invited, though fully conscious of the limitations of the obiter dicta of a deputy judge.  To do otherwise would be to add, if not insult, then disappointment to injury.

10.The first matter upon which the opinion of the court was sought was that reflected in the first question posed in the Case Stated, namely whether “the test in R v. Sharpe (2001) 194 D.L.R. was the proper test to be applied in interpreting the term “child pornography” for the purpose of the Prevention of Child Pornography Ordinance”.

11.Of course the test is an objective one when it comes to considering the nature of the material published.  It is no defence for those accused to say that they believed the material was not child pornography if in fact viewed objectively it was.  No such defence was ever suggested here.  Basic principles provide for this and I can see no reason for this court to give its opinion on a test set out in a Canadian case dealing with differently worded legislation.

12.I am happy to restate what everybody already knew, namely that the relevant test is an objective one.

13.The second matter was whether or not the appellant had to establish the depiction of a female breast that was exposed or partially exposed.

14.In my judgment there can be no hard and fast rule concerning such a matter.  It is a question of fact in each case whether or not a female breast has been visually depicted.  It could be possible to depict a female breast in a sexual manner or context even though it was not partially or wholly exposed. 

15.For instance, an image of the torso of a girl child in an overtly sexual context could be found to include a visual depiction of a female breast by having the outline of a breast drawn over some scanty, though opaque, covering of her actual breast.  Or the covering of the breast, whether created by photo-manipulation or physical material when the photograph was taken, though opaque, could reveal so much of what lay beneath that common sense would tell an observer that the female breast was being visually depicted.  To depict something is to portray or represent it.  Depiction does not necessarily involve photographic reproduction of the thing, or part of the thing, in question.

16.It was said that the publishing industry would welcome guidance in this regard and that the position I adopted in argument would do little to help.  Common sense tells one that images where the girl has her top on will not be found to depict the female breast when her breasts are thereby not visibly represented, but if the photograph is taken in such a way or if something is subsequently done to it that depicts a female breast, even though the actual breast is not exposed, wholly or in part, then, if done in a sexual manner or context, there will be a risk of prosecution.  I would have thought that the circumstances which would give rise to a reasonable person finding a depiction of a female breast in the absence of some actual exposure of it would be such that any sensible editor would recognize them and beware.

17.The third question was whether or not evidence of the production process of a questioned image was admissible in evidence, the appellant’s contention being that it was totally irrelevant and so inadmissible.

18.Relevance depends upon what is in issue so there can be no blanket answer to this question.  In this case there was an issue as to what could be seen in some of the images.  The fact that evidence of the production process established that one could not have seen any part of the girl’s breast was capable of providing help in deciding that issue.  Of course, it is no defence to establish that the girl’s breast was not to be seen in the image if the image did in fact depict her breast by making it appear to be so.  It is appearance and not reality which matters when considering the nature of the image.  The point is that reality is capable of being relevant to establishing the appearance. 

19.The evidence of the fact that the girl’s mother was present throughout is capable of being relevant to the question of sexual context, as it could put the observer’s mind at rest as to any sexual impropriety actually occurring when the photographs were taken, dispelling any argument that the context of the taking of the image had to be sexual.

20.However, the relevance is truly marginal in both instances. 

21.The fourth question concerned whether or not the accompanying text was relevant when judging if the image met the statutory definition.  It was common ground that it was.  That must be the case, especially when the court has to consider the manner and context of the depiction.

22.The matter gave rise to a related question as to whether the text, in order to be relevant and so fall to be considered, had to be in the photographic frame, or closely adjacent to it, or further away in the text of an article.  In my opinion, all the text here is relevant though obviously where it occurs in relation to the image will have a very significant effect upon the impact that it has upon the image in question.  The position or location of the text goes to weight and not admissibility.

23.Accordingly, this appeal is dismissed.

24.There will be an order that the appellant pay the costs of the respondents to be taxed if not agreed.  I would ask the taxing Master to bear in mind that it is the view of this court that this was a case that was never going to succeed and accordingly the taxation should err in favour of the respondents such that they not end up out of pocket.  I would only add that the appellant’s resistance to an order for costs being made in favour of the respondents, when they had not contested the result, on the basis that their views on the issues which were not determinative of the appeal largely coincided with those of the court, was never going to succeed.

Mr Robert S K Lee, SC, Senior Assistant Director of Public Prosecutions and Ms Agnes Chan, SGC, of the Department of Justice, for the Appellant

Ms A P Campbell-Moffat and Ms B Bryce-Borthwick, instructed by Haldanes, for the Respondents