Child pornography and the Internet in Hong Kong.

I. INTRODUCTION

The development of new technologies brings with it unprecedented positive development and advancement to society. One of the greatest technological contributions to society is the invention of the computer. Originally intended as a calculating machine, computer technology has expanded in scope and capabilities to transform information, sound, pictures, text and graphics into digital format. The digitization of information, sound, pictures, text and graphics has enabled substantial amounts of data, and the form of data, to be compressed and stored. The advent of the Internet as a global communication network and its file transferring capabilities add to this phenomenon. Modern society is presented with opportunities to not only communicate text by e-mail but also to scan photographs and to attach the scanned photographs with the e-mail. Once a picture is scanned into a computer, digital graphics software such as Microsoft PhotoEditor allows us to merge, edit or enhance images digitally by what is more commonly known as "morphing." Individuals are able to communicate almost instantly in "real time" with Internet relay chats such as MSN messenger, and, with the installation of web cameras, one can even see the person with whom one is communicating. Such modern methods of communication and transmitting data are not restricted to computers. It is becoming commonplace for mobile telephones to have the capability to photograph or to record an event and to have the photograph taken sent and for the event to be played back. These new technologies are constantly developing and they will continue to revolutionize and change our lives.

New technologies are also revolutionizing the way in which crimes are being committed. The Internet, for example, is seen as a high tech means to facilitate the commission of traditional crimes. It is common for traditional crimes, such as illegal gambling, money laundering, stalking, sale of illegal substances and drugs to be conducted in cyberspace. With the Internet, these crimes can be committed inexpensively, speedily and without detection. In child pornography, home video equipment and advance computer technology has been used to exploit and abuse children by assisting pedophiles in the production and distribution of child pornographic materials. Although child pornographic material still exists in traditional forms, such as videotapes and printed material, it is common knowledge that the Internet is playing a major role in promoting child pornography. By using the Internet, pedophiles get instant gratification in the comfort of their homes. The Internet's file transferring capabilities provide the pedophilic community easier access to child pornographic materials. As compared to waiting for pornographic materials to arrive in the mail or meeting fellow pedophiles in secret, images can be downloaded almost instantly, reproduced, enhanced and further distributed without any loss of quality. This capability increases the possibility of the pedophiles' contact with children, child molesters, child abusers and other pedophiles. It has been suggested that the most commonly used technique for seducing children into sexual activity is by capitalizing on the child's natural need for attention, affection and approval. (1) This has seen a small but rising number of these computer relationships ending up with actual contact and sexual activity with children. (2) Pedophiles may use child pornographic images to break down their own fears or inhibitions thereby allowing them to commit child sexual abuse. Although this may be so, there is very little evidence that that points to a causative link between child pornography and actual child abuse. (3)

Pedophiles who want to meet children need only to troll online chat rooms to find and lure their victims. The anonymity provided by the Internet provides an excellent opportunity for pedophiles to pretend to be children to gain the real children's confidence and trust. Indeed, it has been suggested that the Internet has empowered the marginalized pedophilic community by allowing them a voice whilst guaranteeing them anonymity and that this empowerment may reduce their inhibitions in the real world. (4)

II. THE PROTECTION OF CHILDREN

Children should be protected from all forms of abuse and exploitation. To this end, Article 34 of the Convention on the Rights of the Child (CRC) provides that state parties undertake to protect the child from all forms of sexual exploitation and abuse. (5) Measures should be taken to prevent the exploitative use of children in pornographic performance and materials. (6) In fulfilling its obligations as an adherent member to the CRC and in dealing with the rise in the consumption of child pornography, Hong Kong passed the Prevention of Child Pornography Ordinance (PCPO). (7) This ordinance, which came into effect on December 19, 2003, is seen as a positive step in implementing Article 34.

Historical Development

Prior to the enactment of the PCPO, the supply and distribution of both adult and child pornographic materials was regulated by the Control of Obscene and Indecent Articles Ordinance (COIAO) which deals with obscene and indecent articles. (8) Under COIAO, an article is classified as a Class I article if the article is neither obscene nor indecent, Class II if the article is indecent and Class III if the article is obscene. (9) An article is defined as "any thing consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video tape, disc or other record of a picture or pictures." (10) For the purposes of COIAO, an article is regarded as "obscene if by reason of obscenity it is not suitable to be published to any person." (11) An indecent article under COIAO is any thing "not suitable to be published to a juvenile." (12) The COIAO defines obscenity and indecency to include "violence, depravity and repulsiveness" under the interpretation section of the ordinance. (13) The Obscene Articles Tribunal classifies articles as obscene or indecent. (14) The Tribunal has exclusive jurisdiction in determining if the article is obscene or indecent, (15) and in this regard will consider various factors such as inter-alia the "standards of morality, decency and propriety that are generally accepted by reasonable members of the community" and the persons, class of persons, and the age groups of such person for which the article is intended to be published. (16) The Tribunal shall also have regard to the dominant effect of an article as a whole. (17) Although the COIAO does provide for the Court of First Instance to hear appeals against the decision of the Tribunal, (18) the decision in East Touch Publisher Ltd. v. Television and Entertainment Licensing Authority (19) should be noted. In East Touch, the plaintiffs were appealing against a decision by the Tribunal that an article entitled "Festival of Pornography" was indecent. (20) The plaintiffs argued that the article, which depicted photographs of sexual organs, reproduced in plastic or chocolate was not intended to offend or be taken seriously. (21) The appeal was dismissed with the court reiterating that the Tribunal was the sole arbiter of whether an article is indecent. (22)

Similarly, in the then recent case of East Week Publisher, the plaintiffs were appealing against the decision of the Tribunal which had ruled that the nude photograph of an actress which accompanied the report in the magazine was indecent. (23) The photograph was lifted from the cover of an album of nude photographs of the actress. (24) The plaintiffs argued that the photograph, rather than being indecent, "was of artistic value because it came from the actress' book." (25) Magistrate Selwyn Hason Au See-hin dismissed the appeal stating, inter alia, that there was "no honest intention in publishing the photograph.... The photograph, which took up about a quarter of the page, purposely revealed the actress' breasts to create an erotic effect." (26) Magistrate Au went on to say that "the level of nudity in the photograph surpassed the level of morality accepted by reasonable members of the community." (27)

Certain prohibitions are in place once an article is classified as obscene or indecent. For obscene materials, any person who publishes, possesses, or imports for the purpose of publication an obscene material commits an offense and is liable to a fine of one million dollar and a term of imprisonment of three years. (28) In HKSAR v. Chung Yee-yung, Chung was sentenced to fourteen months imprisonment for publishing an obscene article when he uploaded child pornographic movies onto a website viewed in New Jersey. (29) Publishing indecent material to a juvenile (a person under eighteen years of age) will attract a fine of $400,000 and a term of imprisonment of twelve months for the first conviction. (30) The fine increases to $800,000 with a twelve month term of imprisonment for second or subsequent convictions. (31) A person publishes an article if he, "whether or not for gain, distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public." (32) It is a defense under the COIAO for the defendant to prove that he had reasonable grounds for believing that the article was not obscene, (33) or that under the charge of publishing the article to a juvenile that he had inspected the identity card or passport of the juvenile and had reasonably believed that the person was not a juvenile. (34) There is also a general defense of public good "that such publication or display was in the interests of science, literature, art or learning or any other object of general concern." (35) It can be seen from the cases that the Tribunal, being the "guardians of society's morality," evaluates the defense raised against the standards of morality that is acceptable to society. (36)

At this juncture, it is pertinent to note a survey commissioned by the Television and Entertainment Licensing Authority (TELA). (37) The survey, known as "Public Opinion Survey on the Control of Obscene and Indecent Articles Ordinance," was carried out between January and August of 2001 as part of the government's public consultation in the review of the COIAO. (38) The objective was to gauge and analyze the prevailing standards of morality, decency and propriety acceptable to the community and to collect public views on the standards of classification under COIAO. (39) The survey reported that the majority of the participants (more than 60%) found the prevailing yardstick of classifying articles using the guidelines under section 10(1)(a)--(e) of the COIAO too lenient. (40) Indeed, the survey indicated that materials containing literal descriptions or pictures of voyeurism, incest, bestiality, necrophilia, and child pornography should be strictly classified as Class III articles and should be prohibited from release to the public. (41) Furthermore, there were concerns that since 1996, there have been no new appointments to the Tribunal. (42) This failure of appointment has contributed to the uneven participation of the adjudicators in the Tribunal and has led to the decline in the representative nature of the Tribunal. (43) However, despite the reports and proposals put forward in a consultation paper, the Secretary for Commerce, Industry and Technology in January 2004 decided not to pursue the proposals that would involve amendments to the COIAO. (44) As such, although it has taken the PCPO three and a half years since the bill was drafted to be enacted, the PCPO was seen as a progression in the government's attempt to regulate the content of publicly available materials. (45)

Among the reasons for the delay in the passing of the PCPO bill are Hong Kong's cultural attitudes and moral values with regard to pornography. In a conservative society such as Hong Kong, issues concerning sex such as pre-marital sex, incest, sexual abuse, marital rape, and pornography are subjects that are generally not openly and freely discussed. Furthermore, there was much discussion and debate on matters such as the age at which an individual should be regarded as a child and whether "simple possession" should be criminalized. (46) However, despite the inordinate delay, the PCPO is welcomed as the first piece of legislation which deals specifically with the regulation of production, publication, and possession of child pornography. (47) More importantly, the PCPO provides a comprehensive definition of what constitutes child pornography, (48) and makes the possession of child pornography a criminal offense. (49)

Key Features of the Prevention of Child Pornography Ordinance

Definition of Child Pornography

Child pornography is an international problem of immense proportions. The statistics show that the number of cases in child trafficking, child abuse and child exploitation for pornographic purpose is on the rise. (50) One of the main hurdles in addressing the worldwide rise of child pornography cases is the legal definition of child pornography. (51) With society's attitudes and standards being highly subjective and varied according to differing moral, social, religious, and cultural backgrounds a comprehensive definition of what constitutes child pornography is the first step in any legislation proposed. (52) Asians, for example, are known to be outwardly less liberal and less expressive as compared to their western counterparts. (53) As such, an image that may be regarded as artistic in the West may be seen as offensive, degrading, and repulsive in the East. (54)

The PCPO has defined child pornography as "a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child, whether it is made or generated by electronic or any other means" and "includes data stored in a form that is capable of conversion into a photograph, film, image or pornographic depiction." (55) A "child" is taken to be a person under the age of sixteen. (56) A "pornographic depiction" is defined as "a visual depiction that depicts a person as being engaged in explicit sexual conduct" or 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." (57) It can be seen that the essence of the definition of child pornography as is adopted by the PCPO has been influenced by definitions provided by the Optional Protocol to the Convention on the Rights of the Child (CRC) (58) and international agencies. (59)

The Optional Protocol to CRC defines child pornography as "any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes." (60)

The Interpol Specialist Group on Crimes against Children states: [C]hild pornography is the consequence of the exploitation or sexual abuse perpetrated against a child. It can be defined as any means of depicting or promoting the sexual abuse of a child, including print and/or audio centered on a sexual act or the genital organs of children. (61)

End Child Prostitution in Asian Tourism (ECPAT), (62) on the other hand, provides separate definitions for visual and audio pornography. (63) Visual child pornography has been defined as "the visual depiction of a child engaged in explicit sexual activity, real or simulated or the lewd exhibition of genitals." (64) "Audio child pornography is the use of any audio devices using a child's voice, real or simulated, intended for the sexual gratification of the user." (65)

Child pornography exists in different forms, the most common form being the "visual depiction of a child engaged in explicit sexual activity" whether real or simulated. (66) The definition of child pornography in PCPO however, only refers to materials of a visual nature such as films, photographs, and still films. (67) This could be due to the fact that visual pornographic materials are more commonly consumed than audio pornographic materials. Indeed, in practice, the materials discovered upon arrests have mainly been visually pornographic in nature. (68)

The PCPO does however make provisions for the use of advanced computer technology in the production and perhaps the "morphing" of images in pornographic materials. (69) Indeed, the key word in the various definitions of child pornography is the word "sexual." Are the child's genitals depicted in a "sexual" manner? Is the child depicted as being engaged in explicit "sexual" activity? Is the depiction of the child's genitals or is the depiction of the child as being engaged in explicit "sexual" activity for the sexual gratification of the viewer? This is an important factor as the definition aims to distinguish innocent activities such as children being videoed or photographed naked while swimming in a pool or playing on a beach. In fact, the PCPO does not consider the "depiction for a genuine family purpose" as being within the definition of pornographic images. (70) Although the PCPO does not provide a definition of "genuine family purpose," it seems that images of young children naked or in wet clothes, have a family oriented purpose when the young children are not posing in such a manner as to sexually arouse an individual who looks at the images.

Pseudo Photographs

Child pornography is a form of child abuse. The abuse of children is magnified by new technologies in that pornographic images are easily recorded, digitized, stored and transmitted. Studies conducted on the harmful effects of pornography on children have reported that children who are involved in the production of pornography often experience symptoms including emotional withdrawal, anti-social behavior, depression, fear, anxiety and mood swings. (71) It is not uncommon for such children to also feel a strong sense of powerlessness, guilt, shame and a general distrust of adults. (72) However, what is the effect on children of pseudo photographs which are created by computers without the use or abuse of real children? (73) Pseudo photographs are technically photographs that are created by computer software. (74) Creating pseudo photographs involves not only superimposing the photograph of a child's face on an adult body or to another child's body, for example, but includes manipulating or enhancing body parts. The Canadian case of R. v. Pecchiarich is one of the first cases on pseudo photos. (75) Pecchiarich had created a vast collection of child pornography by altering the characteristics of scanned pictures from various store catalogues of children modeling underwear and swimsuits. (76) Even though no real children were involved in the production of his collection, Pecchiarich was convicted of distributing child pornography over the Internet. (77) In the recent case of R v. Thompson the UK Court of Appeal sentenced Thompson to two years of imprisonment on each of his twelve counts of possession after he pleaded guilty to the possession of 3,700 pseudo photographs of children. (78)

In Hong Kong, it is argued that the issue of pseudo photographs is covered in PCPO's definition of child pornography as "a photograph whether made or generated by electronic or other means, whether or not it is a depiction of a real person." (79) Notably, section 84(3) c of the UK's Criminal Justice and Public Order Act 1994 which amended the Protection of Children Act 1978 includes and defines a pseudo photograph as "an image whether made by computer graphics or otherwise howsoever, which appears to be a photograph." (80) Thus, one may expect that Hong Kong will consider pornographic an image graphically manipulated and created with the aid of computer software that depicts a person engaged in explicit sexual act. (81) Akdeniz argues that pseudo photographs should be treated less seriously because no real children has been abused or exploited to create the image. (82) In contrast, it is submitted that the creation of such pseudo photographs will increase the demand for child pornography. There is little evidence to show that consumers of pseudo photographs do not eventually progress to pornographic images made or produced with real children. No cases involving pseudo photographs have yet come before the courts in Hong Kong and it is difficult to speculate how the courts would react to pseudo photographs. However, if the purpose of the PCPO is to prevent or reduce the abuse and exploitation of children then the courts will treat the creator, producer or publisher of those pseudo photographs less seriously than they would if real children were involved.

Offenses Relating to Child Pornography

Section three of the PCPO creates at least four offenses relating to child pornography namely the creation, reproduction, import and export of child pornographic materials, publication, possession and advertising of child pornography. (83) Section 3(1) provides "Any person who prints, makes, produces, reproduces, copies, imports or exports any child pornography is liable on conviction on indictment to a fine of $2 million and to imprisonment for 8 years; on summary conviction to a fine of $2 million and to imprisonment for 3 years." (84)

This section effectively criminalizes the creation, production, import and export of all child pornographic materials whether created electronically or in its traditional form. This includes the downloading of pornographic images from the Internet. This is obvious from the word "makes" in the section. Support for this comes from the UK case R v. Bowden. (85) In that case, Bowden had downloaded a number of indecent images of young boys from the Internet. (86) Some of the images were printed out as photographs and some of the images remained on the computer's hard disk. (87) The images were discovered when Bowden took his hard disk for repair. (88) Bowden was charged with twelve offenses of making an indecent photograph contrary to section 1(1)(a) of the Protection of Children Act 1978. (89) Section (1)(1)(a) of the 1978 Act makes it an offense to either "take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child." (90) The Court of Appeal had to decide whether Bowden made any indecent photographs. (91) The court held that in the absence of statutory definition of the word "make" in the Protection of Children Act 1978, the word's natural meaning included downloading an image. (92) As with the UK's 1978 Act, there is no definition of "make" in the PCPO. In such circumstances, the Hong Kong courts may find Bowden of persuasive value. It is further argued that the act of downloading materials or data from the Internet or retrieving the stored material from data stored in a form that is capable of conversion into a photograph, film, image or depiction (as referred to in section 2(1)(b)), (93) involves making a new copy of that material. This is clearly covered by the word "copies" in section 3(1). (94)

Publishing child pornographic materials and advertising such publication are offenses that attract a fine of $2 million and an eight year term of imprisonment on conviction on indictment and a fine of $1 million and a term of imprisonment of three years on summary conviction. (95) A person publishes "if he ... (a) distributes, circulates, sells, hires, gives or lends the child pornography to another person; or (b) shows the child pornography in any manner whatsoever to another person." (96) This provision is similar to section 2(4)(a) of the COIAO, which also provides that it is not necessary for the offender in an offense of publication to have received any form of rewards. (97)

The last offense created by PCPO is the offense of possession. (98) "Any person who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography) commits an offense and is liable (a) on conviction on indictment to a fine of [$1 million] and to imprisonment for 5 years; or (b) on summary conviction to a fine of [$500,000] and to imprisonment for 2 years." (99) Arguably, this is one of the most important provisions in the PCPO. In fact, it was because of the word "possession" that the PCPO was delayed for more than three years. (100)

The press has reported on four cases since the PCPO came into effect. (101) The first case involved a waiter who was found to have over 3,000 child pomographic images on his computer. (102) Sam Ma Chi-sum, a 28 year old, was sentenced to four months imprisonment. (103) In the second case, Cheng Siu-ming, a 51 year old, was given a two- month suspended sentence and fined $50,000. (104) Cheng had downloaded more than 1,700 child pornographic images onto his computer. (105) In another case, Ho Man-kit, a 34 year old, was fined $15,000 and given a two-month suspended sentence. (106) In the last case, Peter Colin Bower, a 54 year old man, was fined $10,000 and given a three-month suspended sentence after pleading guilty to a charge of being in possession of 531 child pornographic images. (107) Save and except for Ho's case, all the defendants in the cases were subscribers to several pornographic websites and had downloaded the images for their own viewing. (108) They were also aware that the pornographic images found in their possession were images of children less than ten years old. (109)

It is clear that the courts must assess each case carefully for its gravity before passing sentence. In the United Kingdom, the Sentencing Advisory Panel (SAP) has published advice on sentencing in offenses involving child pornography. (110) A number of factors should be considered by the courts in deciding the level of sentence that should be meted out. (111) One of the key factors influencing the level of sentence is the nature of the material consumed. (112) The SAP has adopted the University of Cork's COP1NE (Combating Pedophile Information Networks in Europe) Index to help categorize the nature of the material. (113) The COPINE Index categorizes materials on a ten point scale ranging from Level 1 Indicative (non erotic/non sexualized pictures) to Level 10 Sadistic/bestiality (sexual images involving pain or animals). (114) Lord Justice Rose in R v. Oliver however, whilst adopting the COPINE Index, reduced and categorized the levels of child pomographic images into five levels. (115) The five levels are: "(1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; (5) sadism or bestiality." (116)

In Hong Kong, it seems that the courts will refer to the five level categories as laid in R v. Oliver in deciding the gravity of the pornographic images. Although Principal Magistrate Kwok Waikin did not expressly state his application of Lord Justice Rose's five level categories in Sam Ma Chi-sum (the first case to be decided under PCPO), (117) the categories were referred to when His Honor commented on the prosecution's inappropriate categorization of the materials. (118) Apart from the nature of the material, the quantity of the material is another factor to be considered by the court. (119) The Internet and modern technologies has enabled pedophiles to expeditiously collect, collate and store a vast quantity of materials which are far greater than that which could have been possible by traditional means. This has made it difficult for the courts to determine what constitutes a substantial or a small amount of materials. Notwithstanding this, it is evident that the amount of pornographic material found in one's possession has a relative effect of the seriousness of the offense. For example, in Cheng, the two-month suspended sentence reflected the lower quantity (1,700 images) (120) and the less serious nature of the pornographic images while in Sam the defendant had over 3,000 images. (121)

The defendant's character is also a factor to be considered in sentencing. (122) In this regard, the court will look at the defendant's previous convictions and his social standing or contributions to society. (123) The fact that the defendant was otherwise a responsible family man with children of his own would be taken into account. (124) Cheng had two children of his own whilst Ho was a father of a two month old baby. (125) None of the defendants in Hong Kong had previous convictions and psychologists' reports found them not to be a danger to society. (126)

A defendant will attract a higher sentence if the court finds any form of commercialism in the pornographic images. (127) The production, possession and distribution of such images for a commercial gain is regarded more seriously by the courts as compared to mere possession of pornographic materials for one's personal use. (128) Pro-children's rights groups have not supported this reasoning. (129) The groups have challenged this argument by rightly submitting that possession of any form of child pornographic material, whether for commercial gain or personal consumption, reinforces the market and encourages production. (130) Psychologist Victor Cline, an expert on sexual addiction, supports this view. (131) Cline has identified a four-step progression among those who consume pornography. (132) The four steps are:

(1) addiction: this causes the viewers to return for more;

(2) escalation: this causes the viewers over time to need more explicit and deviant material;

(3) "desensitization" to the materials and

(4) "acting out" the sexually the behaviors viewed in pornography.

However, as mentioned earlier, although there is no clear link between mere possession of child pornography and the abuse of children, it is important for society and the legislators to remind themselves that for every pornographic image of a child, an offense has been committed against that child. The possessor of the image is like the receiver of stolen goods. If he does not provide the "market" for the record of the abuse, the abuse will not occur. (133) It is common to find men who have been arrested in police raids for child pornography to also be found to be engaged in some form of child sex abuse. Specialists who work with child abusers say that people who possess pornographic images of children are either child abusers themselves or likely to be child abusers. (134) It is submitted that possession of child pornographic materials merely whets the pedophile's appetite, which will eventually graduate to graver forms of child exploitation and abuse. As such, the argument that mere possession of pornographic materials although an offense should not be penalized heavily, if it is not intended for commercial gain, is unacceptable. (135)

As with the element of commercial gain, it can be assumed that the seriousness of an offense is also reflected in the form of the pornographic material. In this regard, the issue whether the material is a pseudo photograph, a real photograph or whether the image is still as opposed to a moving image will be a determining factor in the sentence. (136)

The arrests and conviction of pedophiles under the PCPO reflects Hong Kong's commitment in curbing the rising tide of child pornography. However, it is failing to send out the right message to the pedophilic community through the light sentences that have been meted out. In evaluating the sentences that had been meted out in the recent court decisions under the PCPO, reference will be made to HKSAR v Choy Wing Wah, (137) HKSAR v Poon Wing Yan, (138) and HKSAR v Yiu Chi Yah, (139) which were decided under the COIAO. In Choy, the defendant was sentenced to a term of eighteen months imprisonment when he pleaded guilty to two charges of possession; the first for having 1,724 pornographic VCDs for the purpose of publication and publishing obscene articles and the second for possession of 1,608 pornographic VCDs. (140) In Poon, the sentence was also eighteen months. (141) The defendant in Poon pleaded guilty to three charges of publishing obscene articles and one charge of possessing an obscene article. (142) The materials were child pornographic materials involving adults and children between the ages of six and twelve years and were compiled by the defendant from the Internet. (143) The defendant made $400 selling them to customers who had responded to his advertisements on the Internet. (144) In HKSAR v Yiu Chi Yan, the defendant entered a guilty plea to a charge of possession of obscene articles for the purpose of publication. (145) The articles included videos and photos in CD-ROM format showing explicit sexual acts between adults and children as young as six years old. (146) The defendant intended to use these materials for exchange over the Internet. (147) The court held that any substantial quantity of material involving children even in the possession of the first offender would attract a starting point of thirty months imprisonment. (148) The maximum term of imprisonment for the offenses in these cases is three years imprisonment. (149) In fact Deputy Judge McMahon had stated when deciding Yiu's case:</p>

<pre> I am not sure that the present maximum penalty for this

offense is sufficient. It presently ranks on a lesser level than unlawfully abstracting electricity or taking a motor car without authority. Given the increasing quantity and depravity of this material reaching the court and the increasing ease of publishing it on the Internet, in my view, the Present maximum penalties could well be

reviewed. (150) </pre> <p>Defenses

Section 4 of the PCPO provides various defenses for a person charged under section 3. (151) For example it is a defense to a charge under section 3 if the defendant can prove the child pornography has artistic merit (152) or that he committed the act for "educational, scientific or medical purpose" or it served the public good. (153) It is also a defense if the defendant "had not seen the child pornography and did not know ... it to be child pornography." (154) Another defense exists if the defendant can prove he has taken all "reasonable and practicable" steps to ascertain the age of the child or that he has taken steps "to ensure that the person was not depicted as a child." (155) For the offense of possession, in addition to the defenses of public good, no knowledge, educational, scientific, or medical purpose, it is a defense for the accused to state that "he had not asked for any child pornography and, within a reasonable time after it came into his possession, he endeavoured to destroy it." (156)

The statutory defenses in sections 4(2)(c), 4(3)(c) and (d) are similar to the defenses provided for in section 160(2)(b) and (c) of the English Criminal Justice Act of 1988. (157) It is perhaps useful at this point to refer to the English Court of Appeal decision in R v. Smith and R v. Jayson in seeing how the English courts have considered these defenses. (158)

In the above cases, "[b]oth appellants were convicted of the offense of making an indecent pseudo-photograph of a child contrary to [section] 1(1) of the Protection of Children Act 1978." (159) In R v. Smith, the defendant opened an e-mail attachment containing indecent images of a young girl. (160) The attachment was sent to the defendant upon his request. (161) The images had not been deleted but had remained as an attachment in his mailbox. (162) Counsel for the defendant argued that the defendant had not "made" a pseudo photograph within the meaning of section 1 (1)(a) of the 1978 Act by simply opening an attachment to an e-mail and looking at the image" (163) The Court of Appeal rejected this argument and held that "a person is not guilty of an offense of 'making' or 'being in possession' of an indecent pseudo-photograph contained in an e-mail attachment if, before he opens the attachment, he is unaware that it contains or is likely to contain an indecent image." (164) Judging from the decision in Smith, a person cannot be unaware of the existence of pornographic materials if he solicits them. (165) As with section 4(2)(d) of the PCPO, under section 160(2)(c) of the Criminal Justice Act, it is a defense if the defendant can prove he did not keep the indecent photographs of the child for an unreasonable period. (166) Hence, liability would not arise if the pornographic images were deleted within a reasonable time upon realization of their nature. (167) There is, however, no definition or criteria laid out as to what constitutes reasonable time in either legislation. It is submitted that the court should consider the circumstances prevailing in each case when determining a reasonable period.

In R v Jayson, Jayson had downloaded indecent images of a child into his computer. (168) His deliberate and intentional act of surfing the web for such images made him an active participant in the offense. (169) As such, the defenses under section 160(2)(b) that he did not see the indecent photograph or did not know they were indecent or, under section 160(2)(c), that he did not request for them and he did not keep them for an unreasonable time were not available to him. (170)

It is also submitted that section 4(3)(c) defense that the defendant had not seen the child pornographic material or did not know it to be child pornography can be used to cover what is now known as the "Trojan defense." (171) A Trojan, named after the mythical Trojan horse, is a remote program, which allows someone else to download information on to your computer without your knowledge. (172) The defense has been raised successfully in the UK courts in three cases. (173) A Trojan, named after the mythical Trojan horse, is a remote program which allows a third person to download information onto the owner's computer without his or her knowledge. (174) In April 2003, Karl Schofield was acquitted of possession of child pornography "after prosecutors accepted expert testimony that the unnamed Trojan could have been responsible for the presence of [fourteen] child porn images on [his computer.]" (175) In the case against Julian Green, IT forensic firms discovered "[eleven] Trojan horse programs on Green's computer which were set to log onto "inappropriate sites" without Green's [knowledge or] permission whenever he loaded up a browser to access the Internet." (176) Police found 172 child pornographic images on his computer. (177) Green was acquitted when the prosecution was unable to prove that he had knowingly and intentionally downloaded the images. (178) In the Green case, a forensic audit revealed the existence of Trojan horse programs in the defendant's computer. (179) However in Aaron Caffrey's case, no evidence of a Trojan horse program was discovered. (180) Caffrey argued that the Trojan horse had launched the incriminating attack and was then programmed to self-destruct. (181) As the prosecution was unable to prove its case beyond reasonable doubt, the court acquitted Caffrey. (182)

The Trojan horse defense has yet to be raised by defendants in Hong Kong. The reason could be that the Trojan horse defense is a new but plausible defense and perhaps more importantly, it could be because the PCPO has only just recently been enacted. Hong Kong is beginning to see enforcement of the Ordinance with a number of recent arrests and successful convictions. (183) It would suffice to say that it will not be surprising if the defense is raised in the Hong Kong courts in the near future.

III. CONCLUSION

Hong Kong's enactment of the PCPO is laudable in two aspects. First, the Ordinance is seen as a successful piece of legislation because it has addressed the need to deal specifically with both child pornography and virtual child pornography. Second, the ordinance has resulted in a number of successful arrests and convictions. Finally, and most importantly, it addresses the challenges that new technology brings to the way traditional crimes are being committed. It should be noted, however, that the drafters of PCPO have failed to consider whether Internet service providers (ISPs) in Hong Kong should share the responsibility of patrolling and policing materials on their servers. ISPs hold the key to the front gate. They are in a better position (in terms of technical infrastructure, skill and capability) to monitor who or rather what goes in and out of that gate as compared to, for example, the police. Perhaps, the ISPs should be held responsible for all content they make available to the public unless they had no knowledge of the presence of depraved, corrupt or obscene materials. Although this will not put an end to the proliferation of on-line child pornography, it may reduce its occurrence. (184)

The ordinance is also seen as merely a case of "its bark is worse than its bite." While Deputy Judge McMahon in HKSAR v. Yiu Chi Yan opined that the maximum penalty of 3 years for a conviction under section 21 (1) COIAO should be reviewed to reflect the quantity and depravity of the materials available on the Internet, it is submitted that the issue is not the maximum penalty that is provided for in the ordinance but rather the term of imprisonment that is being meted out by the courts. (185) Out of the four cases reported under the PCPO, only one resulted in a four month imprisonment. In the remaining cases, the sentences were suspended sentences. With such short prison terms and light punishment, how many pedophiles fear punishment under the ordinance?

Child pornography is a global problem with increasing concerns. The rapid development of new technologies and the advent of the Internet have introduced serious challenges to the elimination of child pornography. Many issues have yet to be resolved; such as who is liable for materials placed on bulletin boards, in newsgroups, and on the Internet? Would it be the creator or producer of materials, the person who merely reads it and passes it on, the ISPs, or the person who downloads the material? What about a situation in which the material originates in a jurisdiction where it is not considered to be obscene or pornographic (as a result of varying standards in different jurisdictions), but it is then transmitted to a jurisdiction where it is illegal?

What is certain, however, is the impact that child pornography has on the children involved. There are long-term consequences for the victims of child pornography. Whether or not a pornographer is caught and successfully prosecuted, once a pornographic image is in the public domain such as the Internet, it will be difficult to remove it completely. It is likely that such image will be stored and widely distributed and recycled amongst the pedophilic community. The knowledge that his or her sexual exploitations will be permanently recorded on the Internet can have a devastating impact on an individual's self-esteem. While enacting national legislation is a positive step in regulating child pornography, attempts at merely the national level fail to sufficiently address this global problem. With child pornography transcending national barriers, there is a greater need for legislation to be harmonized among countries to ensure that a real solution is being pursued. One way in which this could be done is to first ensure countries enact legislation to specifically deal with the production, sale, distribution and possession of child pornographic materials. Any legislation enacted to regulate child pornography should provide for extra-territorial jurisdiction. This is important because it would cast a wider net against child pornographers by ensuring that they can be prosecuted at home for acts committed abroad. (186) It is also important to consider the penalty to be imposed on conviction. A heavier penalty in terms of a longer custodial sentence and higher fine can send the right message.

Yet, it seems that this may not be sufficient to stem the tide. International exchange of information and cooperation, which have led to many successful arrests and further investigation, must be continued and improved. (187) On the local front, greater cooperation between ISPs and the police can assist in the timely identification and detection of websites, newsgroups and bulletin boards involved in the distribution of pornographic materials. Also, society as a whole, in particular parents, teachers, educators, child caregivers and children, must be educated and made aware of the incidences of child abuse and child exploitation, as well as how to prevent them. (188) The ubiquitous use of computers as an educational tool and the easy access children have to computers makes it vital that children be educated as to how to keep safe on the Internet. (189) The protection of children must be seen as a priority and the government must be willing to commit resources in education, training and expertise in an attempt to regulate pornographic exploitation of children.

(1.) Margaret Healy, Child Pornography: An International Perspective, World Congress Against the Commercial Sexual Exploitation of Children (Aug. 27-31, 1996), http://www.usemb.se/children/csec/child_pornography.html (on file with the Rutgers Computer and Technology Law Journal).

(2.) Id.

(3.) Ethel Quayle & Max Taylor, Child Pornography and the Internet: Perpetuating a Cycle of Abuse, 23 DEVIANT BEHAVIOUR 331, 332-333 (2002); Katherine S. Williams, Child Pornography and Regulation of the Internet in the United Kingdom: The Impact on Fundamental Rights and International Relations, 41 BRANDEIS L.J. 463, 466-67 (2003).

(4.) Isabella Granic & Alex V. Lamey, The Self Organization of the Internet and Changing Modes of Thought, 18 NEW IDEAS IN PSYCHOL. 93, 102-104 (2002).

(5.) United Nations Convention on the Rights of the Child, Nov. 20, 1989, available at http://www.ohchr.org/english/law/pdf/crc.pdf (on file with the Rutgers Computer and Technology Law Journal).

(6.) The Convention also requires state parties to adopt measures to prevent the inducement or coercion of a child to engage in any unlawful activity and the exploitative use of children in prostitution or other unlawful sexual practices. See id.

(7.) Prevention of Child Pornography Ordinance, (2003) Cap. 579. (H.K.) The government needs to keep statistics of prosecutions for distributing child pornography. Informal police department figures indicate that between 1995 and 1998, police uncovered 30 websites, 28 newsgroups, and 31 bulletin board systems created by Hong Kong pedophiles. Hong Kong Needs Child Protection Legislation (Mar. 25, 1998), http://www.citizensparty.org/law/child.html (on file with the Rutgers Computer and Technology Law Journal).

(8.) The COIAO is enforced by the Hong Kong Customs and Excise Department, the Hong Kong Police Force and TELA. See Television and Entertainment Licensing Authority, http://www.tela.gov.hk/english/about4_org_d. htm (last visited Dec. 4, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(9.) Control of Obscene and Indecent Articles Ordinance, (2003) Cap. 390, [section] 8(2)(b). (H.K.)

(10.) Id. [section] 2(1).

(11.) Id. [section] 2(2)(a).

(12.) Id. [section] 2(2)(b).

(13.) Id. [section] 2(3).

(14.) ld.[section] 6.

(15.) Id. [section] 29(1)(a).

(16.) Id. [section] 10(1).

(17.) Id. [section] 10(1)(b).

(18.) Id. [section] 30(1).

(19.) [1996] 3 H.K.C. 195 (C.F.A.).

(20.) Id. at 197-198.

(21.) Id. at 202.

(22.) Id. at 204.

(23.) Elaine Wu, Eastweek Loses Indecency Appeal, S. CHINA MORNING POST, Oct. 28, 2004, at 4.

(24.) Id.

(25.) Id.

(26.) Id.

(27.) Id.

(28.) Control of Obscene and Indecent Articles Ordinance, (2003) Cap. 390, 1, [section] 21(1). (H.K.)

(29.) See Kam C. Wong, The Discovery of Computer Crime in Hong Kong. A Case Study of the Crime Creation Process, 2005(1) J. INFO. L. & TECH., at Table 19 (2005), http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_1/wong/ (on file with the Rutgers Computer and Technology Law Journal).

(30.) Control of Obscene and Indecent Article Ordinance [section] 22(1).

(31.) Id.

(32.) Id. [section] 2(4)(a).

(33.) Id. [section] 21(2)(e).

(34.) Id. [section] 22(2)(b).

(35.) Id. [section] 28.

(36.) See East Touch Publisher Ltd. v. Television and Entertainment Licensing Authority, [1996] 3 H.K.C. 195 (C.F.A.); see also supra note 30.

(37.) PUB. OPINION PROGRAMME, UNIV. OF H.K., PUBLIC OPINION SURVEY ON THE CONTROL OF OBSCENE AND INDECENT ARTICLES ORDINANCE, HOUSEHOLD SURVEY AND FOCUS GROUP STUDIES, EXECUTIVE SUMMARY (2001), http://www.tela.gov.hk/english/doc/whatsnew/control.pdf (on file with the Rutgers Computer and Technology Law Journal).

(38.) See id. at i-ii.

(39.) Id. at i. The survey comprised a door-to-door household survey of 1,800 Hong Kong residents and a focus group from a cross section of the general public. See id. at ii. Each focus group consisted of at least 40 members and discussions were held to collect the group opinions on the standard of article classification under COIAO. Id. The participants in the household survey and the focus group were asked to consider a number of articles which should be prohibited from publication to the public and the standard of classification (Class I, II, or III) the participants considered would best fit the articles. See id. at ii-iv. The articles for the participants' consideration included, amongst others, a photograph of a female performing oral sex for a male, a photograph of a male sex organ in turgid state, columns introducing pornographic websites and VCD, a sarcastic sex cartoon, comics depicting necrophilia, and a literal description of sexual intercourse. See id. at ii-iii.

(40.) Id. at v.

(41.) Id. at iii.

(42.) Audit Commission of the Hong Kong Special Administrative Region, Report No. 42, Chapter 1, Follow-Up Review of the Television and Entertainment Licensing Authority's Control of Obscene and Indecent Articles (April 2004), available at http://www.aud.gov.hk/pdf_e/e42ch01summary.pdf (on file with the Rutgers Computer and Technology Law Journal).

(43.) See id.

(44.) Panel on Information Technology and Broadcasting, Legislative Council (2004), available at http://www.legco.gov.hk/yr0304/english/panels/itb/minutes/ it040116.pdf (on file with the Rutgers Computer and Technology Law Journal).

(45.) See Kristie Lu Stout, Logjam Blocks HK Child Porn Laws, CNN, Jan. 27, 2003, http://www.cnn.com/2003/TECH/01/27/china.childporn/index.html (on file with the Rutgers Computer and Technology Law Journal).

(46.) See id. (Article 1 of the United Nations Convention on the Rights of the Child provides that a "child" is an individual aged 18 and below. United Nations Convention on the Rights of the Child, supra note 5, at art. 1.)

(47.) See Prevention of Child Pornography Ordinance, (2003) Cap. 579. (H.K.).

(48.) Id. [section] 2(1).

(49.) Id. [section] 3(3).

(50.) The ECPAT Network, http://www.ecpat.net/eng/Ecpat_network/index.asp (last visited Nov. 15, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(51.) PROTECTING CHILDREN ONLINE: AN ECPAT GUIDE 22 (2002), available at http://www.ecpat.net/eng/Ecpat_inter/Publication/Other/English/Pdf_age/ecpat_ onlinesafety.pdf (last visited Dec. 4, 2005) (on file with the Rutgers Computer and Technology Law Journal) [hereinafter ECPAT GUIDE].

(52.) See id. at 18, 22.

(53.) Heike Phillips, The Eyes Have It In a New Era of Facing Social Challenges: Let That Smile Show In Other Ways, Say Experts of the Mask, S. CHINA MORNING POST, Apr. 23, 2003, at 5.

(54.) See ECPAT GUIDE, supra note 51.

(55.) Prevention of Child Pornography Ordinance, (2003) Cap. 579, [section] 2(1)(a)-(b) (H.K.)

(56.) Id. at [section] 2(1).

(57.) Id. at [section] 2(1)(b).

(58.) See United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, art. 2(c), available al http://www.ohehr.org/english/law/pdf/crc-sale.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter OPTIONAL PROTOCOL].

(59.) See, e.g., ECPAT GUIDE, supra note 51, at 18 (quoting definition of "child pornography" of Interpol's Specialist Group on Crimes Against Children).

(60.) OPTIONAL PROTOCOL, supra note 58, at art. 2(c).

(61.) ECPAT GUIDE, supra note 51, at 18 (quoting the Interpol Specialist Group on Crimes against Children).

(62.) The History of ECPAT, http://www.ecpat.net/eng/Ecpat_network/history. asp (last visited Nov. 14, 2005) (on file with the Rutgers Computer and Technology Law Journal) (The name of this group was subsequently changed to "End Child Prostitution, Child Pornography and Trafficking in Children for sexual purposes.")

(63.) See ECPAT GUIDE, supra note 51, at 18.

(64.) Id.

(65.) Id.

(66.) Id.

(67.) Prevention of Child Pornography Ordinance, (2003) Cap. 579, [section] 2(1). (H.K.)

(68.) Susan J. Creighton, Child Pornography: Images of the Abuse of Children (2003), NSPCC, available at http://www.nspcc.org.uk/inform/InfoBriefing/ChildPornography.asp (on file with the Rutgers Computer and Technology Law Journal).

(69.) See Prevention of Child Pornography Ordinance [section] 2(1)(a).

(70.) See id.

(71.) M.H. Silbert, On Effects on Juveniles of Being Used for Pornography and Prostitution, Computer Crime Research Center, http://www.crimeresearch.org/articles/536 (last visited Nov. 29, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(72.) Creighton, supra note 68 (citing M.H. Silbert, On Effects on Juveniles of Being Used for Pornography and Prostitution, supra note 71).

(73.) See generally, Yaman Akdeniz, Governance of Pornography and Children Pornography on the Global Internet: A Multi-Layered Approach, in LAW AND THE INTERNET: REGULATING CYBERSPACE 223-241 (Lilian Edwards & Charlotte Waelde eds., 1997), available at http://www.cyberrights.org/reports/governan.htm.

(74.) Wikipedia, http://en.wikipedia.org/wiki/Pseudo-photograph (last visited Dec. 6, 2005)(on file with the Rutgers Computer and Technology Law Journal).

(75.) [1995] O.R.3d 748.

(76.) Id. at 753.

(77.) Id. at 766.

(78.) [2004] EWCA (Crim) 669, [1] (Eng.).

(79.) Prevention of Child Pornography Ordinance, (2003) Cap. 579, [section] 2(1)(a) (H.K.)

(80.) Criminal Justice and Public Order Act, 1994, c. 33, [section] 84(3)(c)(7) (Eng.).

(81.) See id

(82.) Akdeniz, supra note 73.

(83.) Prevention of Child Pornography Ordinance [section] 3(1).

(84.) Id.

(85.) [2001] 1 Q.B. 88. Note that United Kingdom does not have specific legislation dealing with child pornography. The relevant legislations that do address the issues are the Protection of Children Act 1978 and the Criminal Justice Act 1988.

(86.) Id. at 88.

(87.) See id. at 91.

(88.) Id.

(89.) Id. at 88.

(90.) Protection of Children Act, 1978, c.37, [section] l(1)(a)(Eng.)(amended by Criminal Justice and Public Order Act, 1994, c.33, [section] 84 (3)(c)(7)(Eng.)).

(91.) Bowden [2001] 1 Q.B. at 91.

(92.) Id. at 95.

(93.) See Prevention of Child Pornography Ordinance, (2003) Cap. 579, [section] 2(1)(b) (H.K.)

(94.) Id. [section] 3(1).

(95.) Id. [section] 3(4)(a)-(b).

(96.) Id. [section] 2(2)(a)-(b).

(97.) Control of Obscene and Indecent Articles Ordinance, (2003) Cap. 390, [section] 2(4)(a). (H.K.)

(98.) See Prevention of Child Pornography Ordinance [section] 3(3).

(99.) Id.

(100.) Stout, supra note 45.

(101.) These cases were heard in the magistrate's courts and the judgments have not been formally reported.

(102.) Louisa Yan, Man Jailed in First Success for New Child Porn Laws; Waiter Had Downloaded Thousands of Obscene Images onto his Computer, S. CHINA MORNING POST, July 16, 2004, at 3.

(103.) Id.

(104.) Simon Parry, Should H.K. Be Treating Child-Porn Addicts?, S. CHINA MORNING POST, July 25, 2004, at 12.

(105.) Id.

(106.) Lousia Yan, Suspended Sentence for Possessing Child Porn, S. CHINA MORNING POST, July 30, 2004, at 3.

(107.) Elaine Wu, Suspended Jail Term for Possessing Child Porn, S. CHINA MORNING POST, Aug. 18, 2004, at 4.

(108.)See, e.g., Yan, supra note 102, at 3.

(109.)E.g., id.

(110.)Sentencing Advisory Panel, The Panel's Advice to the Court of Appeal on Offenses Involving Child Pornography (Aug. 2002), available at http://www.sentencing-guidelines.gov.uk/docs/advice_child_porn.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter "Panel's Advice"].

(111.)Seeid. at 1.

(112.)Id.

(113.)Id. at 5-6.

(114.)Id. at 6.

(115.)[2002] EWCA (Crim) 2766, [10]-[11] (Eng.).

(116.)Id.

(117.) HKSAR v Sam Ma Chi Sum, No. 3357 (KTCC July 15, 2004).

(118.) Id.

(119.) See Panel's Advice, supra note 110 at 12.

(120.) HKSAR v. Cheng Sui Ming, No. 6089 (KCCC July 19, 2004).

(121.) Sam Ma Chi Sum, No. 3357.

(122.)See Panel's Advice, supra note 110 at 13.

(123.)R v. Oliver [2002] EWCA (Crim) 2766 [26], [31], [47],[48] (Eng.).

(124.)Id. at [25], [26].

(125.)See Parry, supra note 104, at 12; Louisa Yan, Child Porn Offender Gets Suspended Sentence, S. CHINA MORNING POST, July 17, 2004, at 3.

(126.) See Parry, supra note 104, at 12.

(127.) Panel's Advice, supra note 110, at 2-3.

(128.) Id.

(129.) See CSEC Definitions, Child Pornography, http://www.ecpat.net/eng/ csec/definitions/child_pornography.htm (last visited on Nov. 7, 2005) (on file with Rutgers Computer & Technology Journal).

(130.) Id.

(131.) Victor Cline, The Effects of Pornography on Behaviour, Canadians Addressing Sexual Exploitation, http://web.archive.org/web/20041020074327/ www.c-a-s-e.net/The+Effects+of+Porn.htm (last visited Dec. 6, 2005) (on file with the Rutgers Computer and Technology Law Journal) (opining that men will increasingly fantasize about rape and increase aggressive attitudes toward women as a result of watching violent pornography).

(132.) Id.

(133.) See Creighton, supra note 68, at 4.

(134.) Seeid.

(135.) See Panel's Advice, supra note 110, at 3 (distinguishing between the heightened penalties for commercial as compared to non-commercial use of child pornography).

(136.) Id.; see CSEC Definitions, supra note 129.

(137.) HKSAR v. Choy Wing Wah, [2001] 3 H.K.L.R.D. 19 (C.F.I.); 717 and 718 H.C.M.A. 2001 available at http://legalref.judiciary.gov.hk/lrs/common/ju/ judgment.jsp.

(138.) HKSAR v. Poon Wing Yan, [2001] 3 H.K.L.R.D. J10 (C.F.I.); 693 H.C.M.A. 2001 available at http://legalref.judiciary.gov.hk/lrs/common/ju/ judgment.jsp.

(139.) HKSAR v. Yiu Chi Yan, [2001] 3 H.K.L.R.D. 521 (C.F.I.); 623 H.C.M.A. 2001 available at http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp.

(140.) Choy Wing Wah, [2001] 3 H.K.L.R.D. at I9.

(141.) Poon Wing Yan, [2001] 3 H.K.L.R.D. at J10. (6 months imprisonment on each charge and the magistrate on making the sentences consecutive imposed a total sentence of 18 months imprisonment).

(142.) Id.

(143.) Id.

(144.) Id.

(145.) HKSAR v. Yiu Chi Yan, [2001] 3 H.K.L.R.D. 521, 522 (C.F.I.); 623 H.C.M.A. 2001 available at http://legalref.judiciary.gov.hk/lrs/common/ju/ judgment.jsp.

(146.) Id.

(147.) Id.

(148.) Id. (Deputy Judge McMahon citing with approval HKSAR v Hiroyuki Takeda [1998] 1 H.K.L.R.D. 931).

(149.) Control of Obscene and Indecent Articles Ordinance, (2000) Cap. 390, [section] 21(1) (H.K.).

(150.) Yiu Chi Yan, [2001] 3 H.K.L.R.D. at 522.

(151.) Prevention of Child Pornography Ordinance, (2003) Cap. 579, [section] 4. (H.K.)

(152.) Id. [section] 4(1)(a).

(153.) Id. [section] [section] 4 (2)(a)-(b).

(154.) Id. [section] 4(2)(c).

(155.) Id. [subsection] 4(2)(d)(i)-(ii).

(156). Id. [section] 4(3)(d).

(157.) Criminal Justice Act, 1988, ch. 33, [section] 160 (2)(b)-(c) (Eng.).

(158.) R v. Smith, R v. Jayson, [2002] EWCA (Crim) 683, [2003] Cr. App. R. 212 (C.A.).

(159.) Id. at [1].

(160.) Id. at [6]-[7].

(161.) Id. at [8]-[9].

(162.) Id. at [10].

(163.) Id. at [11].

(164.) Id. at [15].

(165.) See id.

(166.) Criminal Justice Act, 1988, Ch. 33, [section] 160(2)(c) (Eng.).

(167.) Id.

(168.) Smith, [2002] EWCA (Crim) at [24]-[25].

(169.) Id. at [27].

(170.) Id. at [32] - [34].

(171.) Mark Rasch, The Giant Horse Did It, THE REGISTER, Jan. 20, 2004, http://www.theregister.co.uk/2004/01/20/the_giant_wooden_horse_did/ (on file with the Rutgers Computer and Technology Law Journal).

(172.) See id.

(173.) See id., John Leyden, Suspected Paedophile Cleared by Computer Forensics, THE REGISTER, Oct. 28, 2003, http://www.theregister.co.uk/2003/10/28/ suspected_paedopile_cleared_by_computer/ (on file with the Rutgers Computer and Technology Law Journal).

(174.) Id.

(175.) See id.

(176.) Leyden, supra note 173.

(177.) Id.

(178.) Id.

(179.) Id.

(180.) John Leyden, Caffrey Acquittal a Setback for Cybercrime Prosecutions, THE REGISTER, Oct. 17, 2003, http://theregister.co.uk/2003/10/17/caffrey_acquittal _a_setback/(on file with Rutgers Computer and Technology Journal).

(181.) Caffrey was a teenage hacker who was charged with carrying out a denial of service attack on the computers of the Port of Houston's web server systems. Id.

(182.) Id.

(183.) See Yan, supra note 102, at 3; Yan, supra note 125, at 3; Wu, supra note 107, at 4.

(184.) For an interesting piece on the prosecution of an ISP in a pornography case see Brandon Mitchener & Nick Wingfield, A Former CompuServe Official Is Convicted in Pornography Case, WALL ST. J. ONLINE, May 29, 1998, http://online.wsj.com (on file with Rutgers Computer and Technology Journal); George Ivezaj, Child Pornography on the Internet: An Examination of the International Communities Proposed Solutions for a Global Problem, 8 MSUDCL J. INT'L LAW 819 (1999).

(185.) HKSAR v. Yiu Chi Yan, [2001] 3 H.K.L.R.D. 521 (C.F.I.); 623 H.C.M.A. 2001 available at http://legalref.judiciary.gov.hk/lrs/common/ju/ judgment.jsp. Under the PCPO, the offense of possession has increased on indictment to five years but two years on summary conviction. Prevention of Child Pornography Ordinance, (2003) Cap. 579, [section] 3(3). (H.K.) The maximum term of imprisonment for publishing child pornographic material can be found in sections 3(2) & (4) the PCPO.

(186.) This has been provided for in [section] 16 Prevention of Child Pornography Ordinance as an amendment to the Crimes Ordinance. See Prevention of Child Pornography Ordinance, (2003)Cap. 579, [section] 153. (H.K.)

(187.) Note a number of successful operations involving worldwide police cooperation such as Operation Avalanche and Operation Landmark in 1991 and Operation Starburst in 1995. See Tony Krone, International Police Operations Against Online Child Pornography, available at http://www.aic.gov.au/ publications/tandi2/tandi296.pdf. (last visited Nov. 6, 2005) (on file with the Rutgers Computer and Technology Law Journal).

(188.) For example, there are various Internet blocking and filtering software such as cyberpatrol (www.cyberpatrol.com), net nanny (www.netnanny.com), cyber snoop (www.pearlsw.com) and safe surf (www.safesurf.com).

(189.) See, e.g., NCH's Netsmart rules, available at http://www.nch.org.uk/information/index.php?i=135 (last visited Nov. 8, 2005)(on file with the Rutgers Computer and Technology Law Journal).

REBECCA ONG, Bachelor of Laws (Hons), University of London; Masters of Law, King's College London; Masters of Law, University of Strathclyde, Glasgow; Barrister at Law, Lincoln's Inn; Advocate & Solicitor, High Court of Malaya; Teaching Fellow, School of Law, City University of Hong Kong.