Most Read Contributor in Hong Kong, September 2016
By David Ellis (partner) and Stephen Bureaux
The UK Court of Appeal in R v (1) Graham Westgarth Smith, (2)
Mike Jayson (2002) held that mere internet browsing of web-pages,
or opening of emails, containing indecent photographs of children
is an offence under English Law (s1.(1) of the Protection of
Children Act 1978). Hong Kong law differs from English law in this
respect. The nearest equivalent legislation being the Control of
Obscene and Indecent Articles Ordinance, which does not prohibit
viewing of obscene material.
The Court in this case held that the act of voluntarily
downloading an indecent image from the internet to a computer
screen, or opening an attachment that contained an indecent image
of a child so that it was displayed on the screen, was an act of
making a photograph or pseudo-photograph because the computer's
operator, in so downloading, was causing the image to exist on the
screen. The other necessary requirement is that the act of
downloading should be a deliberate and intentional act with the
knowledge that the image was, or was likely to be, an indecent
photograph or pseudo-photograph of a child.
Merely viewing child pornography would not be an offence under
Hong Kong's Control of Obscene and Indecent Articles Ordinance.
Although child pornography is classified as obscene (and not merely
indecent), it is only an offence if publication is involved.
Accordingly, sending an email with an attachment containing child
pornography would be an offence - but merely viewing it would
Companies should ensure that they have appropriate policies in
place to ensure that their computer systems are not used to publish
or view child pornography or other indecent or obscene
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Stokes & Master at the date written first above. All rights
reserved. This publication provides information and comments on
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