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Hksar v Reese Robert Miles David

Judgment Cited authorities 4 Cited in 1 Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date23 September 2022
Neutral Citation[2022] HKCA 1109
Year2022
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACC37/2022
CACC37A/2022 HKSAR v. REESE ROBERT MILES DAVID

CACC 37/2022

[2022] HKCA 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 37 OF 2022

(ON APPEAL FROM DCCC NO 936 OF 2020)

________________________

HKSAR Respondent
v
REESE ROBERT MILES DAVID Applicant

________________________

Before: Hon Zervos JA in Court

Date of Hearing: 25 July 2022

Date of Judgment: 23 September 2022

________________________

J U D G M E N T

________________________


1. On 23 February 2022, the applicant was convicted after trial by District Court Judge Dufton (the Judge) of a single charge of possession of child pornography, namely 4,738 photographs and 931 video clips containing child pornography stored in his desktop computer, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap 579 (“the Ordinance”). The Judge sentenced the applicant to 3 years and 2 months’ imprisonment.

The application for leave to appeal

2. On 18 March 2022, an application for leave to appeal against conviction and sentence was filed by the applicant. He did not set out any grounds of appeal in relation to either application because he had not been able to obtain legal advice. He merely expressed his wish to apply for bail. An application for bail was refused on 28 April 2022.

3. On 27 April 2022, Mr Andrew Raffell, for the applicant, filed perfected grounds of appeal against conviction. These grounds of appeal were subsequently replaced by Mr David Boyton, who now represents the applicant. Mr Boyton filed perfected grounds of appeal against sentence on 2 June 2022 and amended perfected grounds of appeal against conviction on 27 June 2022.

4. Mr Boyton advances two grounds of appeal against conviction. Ground 1 averred that the Judge erred in failing to consider whether the evidence of the two prosecution experts supported or raised the statutory defence that on 22 November 2016 the applicant may not have seen the child pornography on his desktop computer, and may not have known, nor suspected, it to be child pornography. Ground 2 complained that the Judge went against the weight of the evidence by finding the applicant’s references to pornography in his out-of-court statements meant child pornography, and that he was apologising for the possession of child pornography.

5. Mr Boyton advances one ground of appeal against sentence. He complains that the Judge failed to take into account, as a mitigating factor, that the eMule programme, which the applicant used to download pornography, may have supported the applicant’s testimony, albeit rejected, that he did not know of “all” the child pornography files in his desktop computer.

The prosecution case

6. On the morning of 22 November 2016, the police conducted a search of the applicant’s residence. They seized from the living room a black desktop computer (“the computer”). After a preliminary examination they suspected that child pornography had been stored in the computer. The applicant was arrested and cautioned for possession of child pornography. In response, he said, “I downloaded the pornography videos but I rarely watched them. Give me a chance.”[1] Later the same day, in a video recorded interview, the applicant admitted, amongst other things, that the computer belonged to him; that he had downloaded pornographic videos by using a programme called eMule; that he started downloading pornographic videos a few years prior when he had a lot of spare time and was under pressure, stress and depression; that he knew what he had downloaded but did not have much time to watch any of them except for some; and that it was a habit he could not control, which he knew was wrong and was sorry. He said he had unknowingly downloaded child pornographic videos by using the eMule programme.

7. It was admitted in evidence at trial that on 22 November 2016, 12,275 photographs and about 2,793 videos were stored in the applicant’s computer which included 4,738 photographs and 931 video clips containing the child pornography particularised in the charge and that all depicted real children under the age of 16 years.

8. The prosecution case focused on proving that the applicant had accessed and therefore possessed child pornography.

9. The prosecution called, amongst other witnesses, two experts, Sgt 34232, Choi Yau-shing (PW8), and WDPC 15499, Kwong Pui-shan (PW9), officers of the Cyber Security and Technology Bureau. PW8 testified as to his findings of the contents of the applicant’s computer, whereas PW9 gave evidence how to search and download a file using the eMule programme.

The expert evidence

10. There was an issue as to PW8’s analysis of the applicant’s computer. The Judge noted in his reasons that PW8’s explanation of technical matters was at times not very clear and on occasions he needed to revise his evidence. As a result, the Judge had to warn himself about relying on his evidence.[2]

11. PW8 analysed 2,572 pornographic photographs, videos and zip files from the computer to see whether any of the videos had been opened and if there were records of files being downloaded by using the eMule programme. The computer name was DAVID-PC and the administrator was also David with the path C:\Users\David.[3] He produced 5 Annexes in respect of his analysis of these files. He recorded the title of each item in Annex 1 and it is apparent in a significant number of them that they were concerned with preteen pornography. He sought to show that some of the files had been opened by examining relevant times relating to the individual file, which he set out in Annexes 1 to 3.[4] The Judge explained the findings of PW8 as follows:[5]

“160. In summary Sgt 34232 found that the 2572 files were stored in E: drive (save for files 2534-2572); the administrator David had opened 69 shortcut LNK files (Annex 2) and 1545 shortcut files with Windows Media Player (Annex 3); the created time, modified time and access times were inconsistent, denoting some of the files had been opened by the administrator David between 2011 and 19 November 2016; a record of 30 searches for pornographic files by keyword using eMule software were made by administrator David and records of 4227 files were downloaded by administrator David using eMule software.”

12. Annex 4 was a list of 30 keywords used to search the eMule programme. PW8 did not know the dates of the searches and whether there was a maximum number of searches that could be shown on the list. By using the search keyword “pthc jap” and “pthc” in the eMule programme, PW8 explained that there were many results from which the user could select video files to download. The initials “pthc” stood for preteen hardcore. Annex 5 showed that 4,227 files had been downloaded using the eMule programme.

13. PW9 demonstrated how to search and download a file using the eMule programme. She testified that the eMule programme was freely available for downloading on the Internet; it did not automatically download files not selected for downloading; a file had to be downloaded 100% before viewing; files could easily be deleted by moving to the recycle bin and after removal from the recycle bin the file could not be retrieved. However, she accepted that that there was another method that could be used as a shortcut to select all files, which she had not tested and which could possibly be applied to the eMule programme.

14. As it transpired, the Judge did not rely on PW8’s analysis as set out in Annexes 1 to 3. He said:[6]

“267. Having carefully considered the evidence of Sgt 34232 and WPC 15499 summarised earlier, in particular the testimony of Sgt 34232 that the access time in Annex 1 may be affected in three different ways; Sgt 34232 agreed in cross-examination that from just looking at the access time in Annex 1 it was not possible to tell if any of the files had been opened or viewed by a human being; the playing of a video did not change the modified time and that he was not clear whether the antivirus programme installed on the computer could have accessed the files when scanning for viruses; Annex 2 has no child pornography files[7] and that Sgt 34232 was not clear why in Annex 3 the modified time in most files was later than the access time and that some programme might have opened the jump lists, I do not in reaching my verdict rely on the modified and access times in Annexes 1-3 to show that the defendant had viewed any of the child pornography.”

15. Whilst the Judge rejected PW8’s analysis in relation to the access of certain files on the computer, Mr Boyton contends that his evidence gave “some credence” to the applicant’s case that he may not have seen or known of the child pornography in his computer. He complains that the Judge had inappropriately disregarded this evidence.

16. It would appear that the expert forensic evidence was unsatisfactory, and in certain respects unclear. The Judge turned to consider the other evidence before him.

The applicant’s admission

17. Significantly, it was an admitted fact that the applicant’s computer...

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1 cases
  • Hksar v Reese Robert Miles David
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 23 September 2022
    ...37/2022 [2022] HKCA 1109 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 37 OF 2022 (ON APPEAL FROM DCCC NO 936 OF HKSAR Respondent v REESE ROBERT MILES DAVID Applicant _______________ Before: Hon Zervos JA in Court Date of Hearing: 25 Jul......

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