CACC 37/2022 [2024] HKCA 468

On appeal from [2022] HKDC 147 and [2022] HKDC 197

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)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1. On 23 February 2022, the appellant 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 s.3(3) of the Prevention of Child Pornography Ordinance ( Cap 579 ) (“the Ordinance”). The Judge sentenced the appellant to 3 years and 2 months’ imprisonment.

The application for leave to appeal

2. On 18 March 2022, the appellant applied for leave to appeal against conviction and sentence. He did not set out any grounds of appeal in relation to either application because he was unable to obtain legal advice. He merely expressed the wish to apply for bail.

3. On 27 April 2022, Mr Andrew Raffell, for the appellant, filed perfected grounds of appeal against conviction. On 28 April 2022, an application for bail was refused by the Single Judge. [1] Mr Raffell was subsequently replaced by Mr David Boyton, who filed perfected grounds of appeal against sentence on 2 June 2022 and amended perfected grounds of appeal against conviction on 27 June 2022.

4. At the leave hearing on 25 July 2022, Mr Boyton advanced 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 appellant 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 appellant’s references to pornography in his out-of-court statements meant child pornography, and that he was apologising for possessing child pornography. He advanced one ground of appeal against sentence. He complained that the Judge failed to take into account, as a mitigating factor, that the eMule programme, which the appellant used to download pornography, may have supported the appellant’s testimony, albeit rejected, that he did not know of “all” the child pornography files in his desktop computer.

5. On 23 September 2022, the Single Judge handed down judgment, granting the appellant leave to appeal against conviction and sentence on the grounds advanced on his behalf. [2]

6. On 14 December 2022, the appellant was granted bail pending appeal by the Single Judge. [3]

The offence provision

7. Section 3 of the Ordinance sets out a range of offences relating to child pornog