HKSAR v. Kwok Po Lun

Case No.CACC 164/2013[2015] 3 HKLRD 84

Court

Court of Appeal

Date28 Apr 2015

Judge—

Case Document

100%Judiciary

CACC 164/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 2013

(ON APPEAL FROM DCCC NO. 64 OF 2012)

____________

BETWEEN
	HKSAR	Respondent
	and
	KWOK PO LUN (郭保麟)	Applicant

____________

Before : Hon Lunn VP, Macrae and McWalters JJA in Court

Date of Hearing : 28 April 2015

Date of Judgment : 28 April 2015

Date of Reasons for Judgment : 6 May 2015

________________________

REASONS FOR JUDGMENT
________________________

Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.In this Court, the applicant renewed his applications for leave to appeal against conviction and sentence following the refusal of McWalters JA on 17 November 2014 to grant leave. On 19 March 2013, the applicant was convicted after trial by District Judge Dufton on a Charge Sheet of a charge of possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579 (Charge 1) and a charge of publishing child pornography, contrary to section 3(2) of that Ordinance (Charge 2). On 19 April 2013, the judge sentenced the applicant to 3 years and 9 months’ imprisonment on Charge 1 and 4 years and 6 months’ imprisonment on Charge 2, ordering that those sentences be served concurrently. Accordingly, the total sentence imposed was 4 years and 6 months’ imprisonment. At the hearing we refused both applications and said that we would give our reasons for doing so in due course. That, we do now.

The Trial

2.On 15 April 2010, during a search of premises at Lotus Tower, Kwun Tong Garden Estate, Ngau Tao Kok, at which the applicant lived with his father and the latter’s wife, police officers seized a computer from a bedroom. Subsequent examination of the computer revealed that stored on its hard disk were 40,954 images and 510 films containing child pornography (Charge 1), of which nine images and 497 films were alleged to have been published by the applicant (Charge 2).

3.There was no dispute that those images and films were stored in the computer[1]. At issue, was when that material came to be stored on the computer, in whose bedroom the computer was found and to whom it belonged.

The prosecution case

4.It was the prosecution case that the room in which the computer was found was the applicant’s bedroom and that the applicant was the sole user of the computer. DPC 33596, one of the officers involved in searching the applicant’s premises, testified that he had seen the applicant walking out of the bedroom in which the computer was found. Further, the computer had two valid user accounts: one described as “Alan” and the other as “Guest”. The applicant used the Christian name Alan, which was part of his work E-mail address, namely [email protected]. Only the account “Alan” was activated to accept the password logon. In addition, the police expert found contained within this computer other files relating to the applicant by his Chinese name Kwok Po Lun and to “Alan”.

5.Although when first examined at the applicant’s home on 15 April 2010 by PC 58917 no child pornography was found stored on the computer, the impugned material, the subject of the charges, was found on the computer in a subsequent examination by PC 3379 on 23 April 2010. The former examination had used a program called ‘SPADA’, whereas the latter used software called ‘EnCase’. PC 3379 testified that the material the subject of Charge 2 was found on a program called ‘eMule’, which was capable of automatically sharing the files uploaded and downloaded. The incoming file path, where ‘eMule’ was used to store downloaded or uploaded files, was set to share via the Internet, thereby permitting access to the public. PC 3379 said that, if the Internet connection was successful, the material the subject of Charge 2 had been shared in that way.

6.It was the prosecution case, that it was to be inferred from all the evidence that the applicant was in possession of the child pornography, in particular that he was in control of the computer and knew of the existence of that material on the computer (Charge 1). Further, the applicant had distributed the material the subject of Charge 2.

The defence case

7.The applicant did not avail himself of his right to give evidence, but did call Dr Ajay Kumar to give evidence as an expert witness in respect of computer technology. However, Dr Kumar had not conducted a physical examination of the applicant’s computer.

8.The defence case was that the evidence of the location of the computer at the time of its seizure was unreliable. It had not been proven that the room from which the computer was seized was the applicant’s bedroom. Further, the possibility that others, such as the applicant’s parents who also resided in the flat, might have accessed the computer for their own purpose could not be excluded. Also, third parties could have secretly caused the child pornography to be stored in the computer either by entering the applicant’s flat to gain physical access to the computer, or by remotely accessing it or by hacking into it. Finally, it was suggested that, given the poor level of security obtaining during the time that the computer was in the custody of the police following its seizure, the possibility was that the material could have been installed on the computer after its seizure by the police.

Grounds of appeal: the renewed application

9.In the Notice of Renewal of Application after Refusal by the Single Judge (Form XIII) dated 26 November 2014, the applicant sought leave to appeal against conviction and sentence. However, the applicant advanced grounds of appeal against conviction only. On 30 December 2014, the applicant filed with the Court further grounds of appeal against conviction only, together with a report dated 3 April 2013 by Charles Pau, a clinical psychologist, prepared at the direction of District Court Judge Dufton.

10.First, it was submitted that the trial judge erred in finding that “no one other than the applicant had physically accessed the computer to put the child pornography on the computer”. In that context, the applicant asserted that he had provided the police with the password which permitted access to the computer. Counsel for the respondent had confirmed that to be the case in a hearing before the Single Judge.

11.Then, the applicant submitted that, given the judge’s acceptance that the computer had not been properly stored and protected from interference following its seizure, there was a real probability that there had been interference with the computer.

12.Next, it was contended that, given the possibility that the computer had been tampered with, the evidence did not establish whether the publication of the impugned material was done by the applicant on his own initiative or automatically by the computer.

13.Finally, it was submitted that the psychological report of Charles Pau, provided on the direction of the judge prior to sentencing, militated against a finding that the applicant had committed the offences, given that Charles Pau express the opinion “there was no indication to suggest that he had paedophilic tendency or any other deviant sexual interest”. It was suggested that, in the absence of evidence on intent and motive, it was unsafe for the judge to convict the applicant.

A consideration of the submissions

14.It is clear from the headings under which the judge conducted his analysis of the evidence in his Reasons for Verdict that he was alive to the issues in the case, namely:

· (In) Whose bedroom was the computer found and who was using the computer?

· When the police seized the computer, was the child pornography on the computer?

· Physical and remote access to the computer.

· Was the child pornography planted on the computer as a result of hacking?

· Did the defendant access the child pornography?

15.The judge was alert to the fact that PC 58917 did not find any child pornography during the initial preliminary examination of the computer conducted at the residence of the applicant on 15 April 2010. But, he noted that the examination had been done by using an old software programme, ‘SPADA’, which was known to have shortcomings.[2] Nevertheless, the judge found:[3]

“ I accept the evidence of PC 3379 that “SPADA” permitted only a preliminary examination, whereas the software “EnCase” has more powerful functions and permits a more detailed examination. I am satisfied so I am sure the only inference to draw is that the child pornography was on the computer at the time of seizure on the 15 April 2010.”

16.Also, the judge said that whilst he found the handling and storage of the computer by the police to be “most unsatisfactory”, nevertheless, he rejected the submission that the computer had been interfered with whilst in police custody. He said that it was “inherently improbable that someone could have downloaded, copied or by other means planted such a large quantity of child pornography on the computer” whilst it was in police custody without anyone noticing what was happening.[4]

17.In the result, the judge found:[5]

“ …. that the child pornography was on the computer at the time of seizure on the 15 April 2010.”

18.Having considered the evidence relevant to the issue of the applicant having accessed the child pornography on the computer and, in reliance of the evidence of PC 3379, the judge said that he was satisfied that the applicant did, in fact, access that child pornography.[6] Having determined that the applicant was the person described as “Alan” in the valid user account, physical access to which was by use of the password only, the judge found:

“ There being no evidence before the court that the defendant gave his password to anyone, including his family, I am satisfied so I am sure the only inference to draw from the evidence is that the defendant was the only one who used the password to log on the computer.”

19.The judge went on to find:[7]

“ …I am satisfied so I am sure the only inference to draw is that no one other than the defendant had physically accessed the computer to put the child pornography on the computer.”

20.Of the issue of the possibility of remote access to the computer being the method by which the impugned material came to be on the computer, the judge said:[8]

“ I accept the evidence of PC 3379, who examined the actual hard discs of the computer, that Remote Desktop was not activated and that there were no other programmes installed on the computer permitting remote access.”

21.Of the issue of whether or not the impugned material came to be on the computer as a result of hacking the judge said that he considered specific areas; namely, the vulnerability of Windows XP, whether or not any traces of hacking on the computer and the location where the child pornography was found. Having reviewed each of those specific areas in turn, the judge found:[9]

“ I find I am satisfied so I am sure I can accept the opinion of PC 3379 that the chances of hacking were low. Taking into account that PC 3379 found no virus or traces of hacking and that the child pornography was stored in well known or established sites which were commonly used, in particular ‘My Pictures’, I am satisfied so I am sure the only inference to draw is that the child pornography found on the computer was not as a result of hacking.”

22.On the issue of whether or not the applicant accessed the child pornography on the computer, the judge said:[10]

“ I have carefully considered the evidence as to the locations of the child pornography in the computer together with the evidence relating to link files. I accept the evidence of PC 3379 that the account “Alan” had been used to access the child pornography to which 15 link files pointed.”

23.In the result, in finding the applicant guilty of Charge 1, the judge determined that he was sure that the “defendant controlled and knew of the existence of the child pornography on the computer”. Further, that the applicant knew “the exact nature of the material”.[11]

24.In respect of Charge 2, the judge noted the presence of a file sharing programme, ‘eMule’ that was capable of uploading and downloading the child pornography. There was also evidence that there had been a number of requests for uploading and that, in fact, a total amount of 2.92 MB had been transmitted out in respect of one of the films by this file sharing programme.[12] The judge determined that he accepted the evidence of PC 3379 “that files containing child pornography were shared by the ‘e Mule’ programme”.[13] In the result, the judge found:[14]

“ …I am sure the defendant published the 9 images and 497 films containing child pornography by making them available through the peer-to-peer sharing programme ‘eMule’ via the internet.”

25.On the basis that that conduct satisfied the definition of “publishing”, the judge convicted the applicant of Charge 2.

The applicant’s provision to the police of the password to the computer

26.As noted earlier, in his grounds of appeal the applicant challenged the judge’s finding that “no one other than the defendant had physically accessed the computer to put the child pornography on the computer”.[15] He contended that he had provided the password to the computer to the police officer who accessed the computer at his home on 15 April 2010. The applicant conceded that no such evidence had been given and no such suggestion made in cross-examination of the police officers. Further, he said that he provided the same information in a written statement made later that morning at the police station. The applicant contended that, as a result, the requisite information to access the computer was available to the police, and to whomsoever they might pass on the information, to access the computer whilst it was in police custody and ‘plant’ the impugned material on the computer.

27.For the respondent, Ms Memi Ng confirmed that a written statement made by the applicant at the police station at 10:00 hours on 15 April 2010 stipulated the alphanumeric code to the computer, consisting of 15 digits and one letter of the alphabet. Further, she said that it had been served on the defence as unused material.

28.The judge adverted to the fact of out-of-court statements made by the applicant, noting:

“ Although DPC 33596 said in cross-examination there was a detailed statement made by the defendant at the police station no such statement has been adduced in evidence.”

29.The context in which the judge made those observations was the reliability of the evidence of DPC 33596 in respect of oral statements by the applicant at his home on 15 April 2010, to the effect that the computer and the bedroom in which it had been found were the applicant’s. In the result, no doubt at the behest of counsel for the applicant, the judge determined that, given that the police officer had made no note to that effect in his notebook, it would be unsafe to rely on that evidence.

30.Clearly, the defence at trial was to distance the applicant from the computer. That much was made clear by the judge’s earlier description of the respective positions of the prosecution and defence in relation to the issue of where the computer was found and who used it:[16]

“ The prosecution case is that the computer was found in the defendant’s bedroom and that the defendant was the sole user of the computer. The defence submit the evidence that the computer was found in the defendant’s bedroom is unreliable (see paragraphs 6 & 7 of the written submission of Mr Wong) and that the court cannot rule out that the defendant’s parentsalso used the computer for their own purpose (see paragraph 8 of the written submission).”

31.In those circumstances, it is clear that a deliberate tactical decision was taken by those representing the applicant as to how the defence was put. That defence having failed at trial, it is not open to the applicant now to advance a different defence, namely that he cooperated with the prosecution and provided them with information from which access could be made to the computer. That evidence was not led at trial. There was a deliberate decision of the defence at trial.

32.In any event, it is to be noted that PC 58917 testified that he had used a program called ‘SPADA’ to conduct his forensic examination of the computer at the applicant’s home on 15 April 2010. No suggestion was made to him that he accessed the computer with the password provided to him by the applicant. That much is consistent with the applicant’s concession to this Court. Moreover, PC 58917 failed to gain entry to the user account ‘Alan’. On 23 April 2010, PC 3379 succeeded in gaining access to that account by use of the software ‘EnCase’. That is a forensic tool which enables Investigators to access material on a computer without the use of the password. In his witness statement dated 11 December 2012,[17] PC 3379 described further examination of the computer that he had conducted in November and December 2012. In his description of the results, he set out the 15 digit and one letter of the alphabet password which permitted access to the ‘Alan’ user account.

33.Furthermore, not surprisingly, the judge rejected the submission that whilst the computer was stored informally and impermissibly beneath a desk in the police station that someone had access to it and planted “62,284 images and 639 films” on the computer. Of that, as noted earlier, he was entitled to say that it was in “inherently improbable”.[18]

34.We were satisfied that there was no merit in this ground of appeal.

Conclusion

35.We were satisfied that there was nothing untoward in the judge’s rigourous analysis of the evidence and the findings that he made from that analysis. There was no merit in the renewed application for leave to appeal against conviction, which was refused.

Reasons for Sentence

36.In passing sentence the judge said that he took into account that it was the psychologist’s opinion that there was no indication to suggest the defendant has paedophilic tendency and that the risk of re-offending is assessed to be low.[19]

37.In determining the appropriate starting point for sentence for the offence of the possession of child pornography, the judge referred to the guidelines issued by this Court in its judgment in Secretary for Justice v Man Kwong Choi [20]. There, Level 4 conduct was identified as being “penetrative sexual activity between children and adults, or sadism or bestiality.[21] The judge noted that this Court said that sentences for offences concerning such material should be in the range of 12 months to 3 years’ imprisonment, subject to a consideration of mitigating and aggravating factors.

38.Next, the judge noted that the parties had agreed the classification of the child pornography, namely:[22]

Level 1 – 15,533 images and 99 films

Level 2 – 9,131 images and 88 films

Level 3 – 8,585 images and 111 films

Level 4 – 7,705 images and 212 films

39.Of the significance of those facts, the judge noted:[23]

“ The total number of images and films being 40,954 and 510 respectively are substantially more than the two cases subject of review in Man Kwong Choi.

Almost half of the images however are described as cartoons, which are regarded in most cases as less serious. Nevertheless those of real children remain very substantial, namely 21,462 images of which 1,055 images are classified as Level 4. All the 510 films are of real children of which 212 are classified as Level 4. Again those classified as Level 4 are substantially more than the two cases subject of review in Man Kwong Choi.”

40.Earlier, the judge noted that in the two cases the subject of the review in Man Kwong Choi there were 187 images and 69 films and 200 images and 48 films respectively at Level 4.[24]

41.The judge said that he had viewed a file “containing 10% of the images and stills from the film’s, which are said to represent the range of child pornography found on the computer, together with what is described as Photograph Album, Part II, which contains further images and stills from the films specifically showing very young children.” [25] Of the nature of the examples of the Level 4 material that he had viewed, the judge said:[26]

“ Whilst there may be no acts of bestiality there are many very disturbing images. The two stills from A49 together with additional stills from the same film (485) seen in Photograph Album, Part II, are in my view unquestionably disturbing, involving buggery of a very young girl.

A22 whilst classified as Level 3 the title of the film is “13 year old child raped and crying.” The description of the film reveals disturbing sexual behaviour including a girl being tied up and masked men inserting hard objects into her mouth and private parts resulting in the girl struggling and resisting. I note the film lasts 14 minutes and 17 seconds.

The title of A46 includes the father joining in sexual activity with his own children aged 9 and 10. In A47 a pen is inserted into the private parts of a young girl aged 8. The films last 12 minutes and 38 seconds and 23 minutes and 01 second respectively.

There are also many images of children being buggered. This can be seen in the films A42 and A45 which show buggery with a teenage boy and a girl aged 9, films which last 50 minutes and 23 seconds and 5 minutes and 41 seconds respectively. Further acts of buggery can be seen in the photographs in Part B.

Much of the conduct depicted must have caused fear or distress to the child victims. This is most apparent in A35. The description of the film includes the girl being tied up. This film lasts 57 minutes and 54 seconds. One still shows the girl gagged and the other still shows the girl in obvious distress.

The images and films are nothing short of repulsive and disgusting.”

42.In the result, the judge determined:[27]

“ Notwithstanding almost half of the images are cartoons, the quantity of the images and films is in my view an aggravating feature of sentence.”

43.In addition, the judge determined, having regard to the fact that by having the files in ‘eMule’ set to share via the Internet “there was an intention to publish”, that was another aggravating feature of the commission of the offence.[28]

Starting point for sentence

Charge 1

44.Having regard to, “the total quantity of images and films; the number of images and films at Level 4; the nature of those images; the intention to publish; and then a substantial quantity are cartoons” the judge stipulated a starting point for sentence for Charge 1 of 4 years’ imprisonment.[29]

Charge 2

45.In respect of Charge 2, the judge said he took into account that the applicant was engaged in non-commercial distribution only, but said this was not significant in the context of child pornography. However, he noted that “examination of the computer revealed that a total of nine images and 497 film containing child pornography had been shared via the Internet”. Further, he said that in respect of one film, 996 requests have been made for uploading of which 30 have been accepted and a total of 2.92 MB data from the file uploaded and shared on the Internet.[30] In the result, having noted the number of films that had been shared and having regard to “… the manner of distribution; and the length and nature of the films, with a substantial amount being Level 4”, the judge stipulated a starting point for sentence of 4 years and 9 months’ imprisonment.[31]

Discount from the starting point

46.Although the judge acknowledged that that the guidelines provided by this Court in Man Kwong Choi were for a first time offender, nevertheless, having noted that the applicant had no previous convictions, the judge afforded him a discount of one months imprisonment .[32]

47.Noting that there was a delay following the arrest of the applicant in July 2010, that being three months after the computer was seized from his home, until the commencement of the trial in March 2013, the judge said of the delay of 17 months from the time of the applicant’s arrest until he was charged, “…there is is nothing in the chronology which appears to justify the taking of over 17 months from arrest to charge.”[33] As a result, the judge stated that he afforded the applicant a further discount of two months imprisonment in respect of each sentence.[34]

Sentence

48.In the result, the judge imposed a sentence of 3 years and 9 months’ imprisonment in respect of Charge 1 and 4 years and 6 months’ imprisonment in respect of Charge 2.

A consideration of the submissions

49.Although the applicant renewed his application for leave to appeal against sentence by filing Form XIII, he did not and has not advanced any written submissions in support of that application.

50.At the outset it is to be noted that the maximum sentence of imprisonment for the offences of possession of child pornography and publishing trial pornography are 5 years and 8 years respectively.

51.This Court has had sight of the two files of photographs, said to be representative of the material in the computer, which the judge viewed and described. The judge’s analysis and description of the material was measured and appropriately descriptive and avoided any emotional element. Indeed, he noted that a judge, sentencing in such circumstances, was required to guard against “passing sentence when emotions have been raised by what he has seen”.[35] His ultimate determination that the material was “repulsive and disgusting” was entirely apposite.

52.In the judgment of this court in Man Kwong Choi, Ma CJHC, as Ma CJ was then, said that the guidelines were appropriate for a first offender convicted after trial of an offence of possession of child pornography, in which the child pornographic material involved real children. In dividing the categories of offending material into four levels, the court identified Level IV as concerning “penetrative sexual activity between children and adults” and “sadism or bestiality”. For such conduct, the Court said that the range of sentence “should generally be from 12 months (even for a few images) to 36 months.” Noting that the guidelines were subject to mitigating or aggravating factors, the Court identified various aggravating factors, including the number of images, an intention to publish and “the age of the children depicted. Where the depictions involved particularly young children, this would be an important consideration.” [36]

53.Having noted that the material the subject of the two reviews in Man Kwong Choi was only “for the personal use of the respondents”, Ma CJHC went on to say, “if the images have been intended for publication, distribution or sale the sentences would have been significantly higher.” [37]

54.The judge was entirely justified in having regard to the fact that the total number of images and films in the instant case was “substantially more than the two cases subject to review in Man Kwong Choi”. Similarly, he was entitled to take account of the fact that there were 1055 images and 212 films that were classified as Level4 and to note that was substantially greater than in Man Kwong Choi.[38] Having taken those matters into account, together with the nature of the images and the intention to publish, the starting point for sentence stipulated by the judge for Charge 1 of 4 years’ imprisonment was entirely appropriate. The factors to which the judge made reference were highly relevant to the aggravating circumstances of the commission of the offence justifying a sentence of imprisonment beyond the upper range of the general guideline of 3 years’ imprisonment provided by this Court for offences of possession of Level 4 images.

55.Given that the maximum sentence of imprisonment for the offence the subject of Charge 2 is 8 years’ imprisonment and having regard to the nature and the volume of material so published, the starting point for sentence stipulated by the judge of 4 four years and 9 months’ imprisonment, whilst a severe sentence, was entirely appropriate for a very serious offence. As Ma CJHC noted in Man Kwong Choi, “the ready availability of child pornography through the internet…. considerably facilitates the dissemination of child pornography worldwide.” [39] Further, that amongst the broader considerations taken into account by the courts the main one is “protection of vulnerable children” [40].

Conclusion

56.In result, were satisfied that there was no merit whatsoever in the renewed application for leave to appeal against sentence, which was refused.