Internet sex crimes against children: Hong Kong's response

Abstract

The constant development of new technologies such as the Internet and other digital communication devices are increasingly becoming a modern day must have for children. While it is acknowledged that the Internet has tremendous benefits and continues to enrich society in general, a dark side exists. The Internet is largely uncensored. The easy accessibility of the Internet via the home, schools, public libraries, Internet cafes and 3G mobile phones, children are exposed not only to readily available inappropriate material but also unsolicited communication by strangers. This article provides an overview of sex crimes the Internet facilitates against children and the specific problem of online child pornography. The paper examines Hong Kong's response with specific reference to the recently enacted Prevention of Child Pornography Ordinance (Cap 579) (PCPO). The Ordinance's salient features such as the definition of child pornography, the issue of pseudo photographs, the offences created and the defences available under the Ordinance are evaluated. An analysis is made of recently decided cases with respect to the new offence of possession. It finally concludes with the view that a genuine effort is required at both national and international levels to combat child pornography on the Internet.

Notes

1. M Flood and C Hamilton ‘Regulating youth access to pornography’ 2003 at www.tai.org.au (last accessed 8 March 2006) .

2. A survey was conducted by Symantec, an Internet security firm in 2003. The survey conducted among 1000 young people between the ages of 7 and 18 showed that 80% of them received spam on a daily basis. 47% of the spam received were from X-rated websites. See www.symantec.com/press (last accessed 8 March 2006).

3. See ‘Exploring impacts of online activities on junior secondary school students’ at www.aca.org.hk (last accessed 8 March 2006).

4. J Carr ‘Child abuse, child pornography and the Internet’ at www.nch.org.uk (last accessed 8 March 2006).

5. P2P applications have become well known because of Napster. P2P are used to share files—music, video, software and other files but it is increasing used to traffick pornography. Other P2P applications using the same principle of file share and swapping include KaZaa, Morpheus and Gnutella.

6. See www.gao.gov/cgi-bin/getrpt?GAO-03-272 (last accessed 8 March 2006).

7. M M Ferraro and E Casey Investigating Child Exploitation and Pornography Kluwer Academic Press, Dordrecht, 2005.

8. 378 US 184 (1964).

9. www.unicef.org/crc/oppro.htm: last accessed 3 September 2004, Interpol recommendations on Offences Against Minors, INTERPOL 61st General Assembly 1995 at www.interpol.int/public/children/default (last accessed 3 September 2004), www.ecpat.org. Note that ECPAT provides separate definition for both audio and visual pornography.

10. http://www.lexum.umontreal.ca/csc-scc/en/pub/2001/vol1/html/2001/scr/-0045.html (last accessed 8 March 2006).

11. Sir W Utting ‘People like us: the report of the review of the safeguards for children living away from home’, HMSO, Department of Health, 1997 in ‘Child Abuse and the Internet’ www.nch.org.uk.

12. www.gao.gov/cgi-bin/getrpt?GAO-03-272 (last accessed 8 March 2006). In 2002, the National for Missing and Exploited Children Center reported 26,759 child pornographic web sites.

13. J Wolak, K Mitchell and D Finklehor ‘Internet sex crimes against minors: the response’ Alexandria, VA: Crime Against Children Research Center, University of New Hampshire, National Center for Missing and Exploited Children, 2003.

14. D Finklehor, K J Mitchell and J Wolak ‘Online victimization: a report on the nation's youth, National Center For Missing and Exploited Children’ (2002) at www.missingkids.com/download/ (last accessed 8 March 2006).

15. T Ward ‘The function of sexual fantasies for sexual offenders’ Behaviour Change Vol 20, pp 44–60, 2003.

16. As with child pornography, the impact on children of exposure to pornography is considerable. Depictions of sexual behaviour may be emotionally disturbing to children who encounter them. They may be shocked, troubled or disturbed by premature or inadvertent encounters with sexually explicit material. The survey found 53% of children aged 11–17 had seen or experienced something on the Internet they thought offensive or disgusting. The respondents said they felt ‘sick’, ‘yuck’, ‘disgusted’, ‘repulsed’ and ‘upset’. There have also been consistent and reliable studies that showed consumption and exposure to pornography increases male aggression towards women. See www.tai.org.au (last accessed 8 March 2006).

17. See http://convention.coe.int/Treaty/Commun/CETS185, www.unicef.org/crc/crc/html (last accessed 8 March 2006).

18. See for example Canada, which had amended its obscenity law and outlawed the possession of child pornography in 1993.

19. The legislature had in formulating PCPO fulfilled its obligations as an adherent member of the Convention on the Rights of the Child (CRC). Art. 34 of CRC provides for state parties to undertake to protect the child from all forms of sexual exploitation and abuse including adopting measures to prevent the exploitative use of children in pornographic performance and materials. The legislature had also taken into account the Council of Europe's Convention on Cyber Crime. Although not a member to the Convention on Cyber Crime, Art. 9, which provides for the enactment of domestic legislations criminalizing activities involving online child pornography, led to the promulgation of the PCPO.

20. S.2(1)(a) & (b) PCPO.

21. Ibid.

22. Atkin v Director of Public Prosecutions 1 WLR 1427 2000 where a photograph of a naked woman was superimposed by tape over a photograph of girl's body.

23. S.2(1)PCPO.

24. Y Akdeniz ‘The regulation of pornography and child pornography on the Internet’ Journal of Information Law and Technology, Vol 1, 1997, available at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_1/akdeniz1/; see also the views of the Sentencing Advisory Panels' view that possession of pseudo photographs be treated at the lowest level of seriousness for sentencing purposes—www.sentencing-guidelines.gov.uk/docs/advice_child_porn.pdf (last accessed 8 March 2006).

25. S.Ct 1389 (2002).

26. [2000] 2 All ER 418. Note that the UK does not have specific legislation dealing with child pornography. The relevant legislations are the Protection of Children Act 1978 and the Criminal Justice Act 1988.

27. It is worth noting however that the Sentencing Advisory Panel had proposed that for the purposes of sentencing, downloading should be treated as equivalent to possession.

28. S.3(2) and (4)PCPO, S.2(2)(a) PCPO.

29. KTCC 3357/04.

30. ESCC2038/2004.

31. ESCC2041/2004.

32. KCCC6081/2004.

33. KCCC6089/2004.

34. KCCC6766/2004.

35. KTCC3357/2004.

36. TMCC3473/2004.

37. HKSAR v Lin Chun-kwok, Addie KCCC6077/2004, NKcc3510/2004; HKSAR v Chan Yiu Kei STCC663/2004; HKSAR v Tsang Kai Chung TMCC367/2004; HKSAR v Ho Wing Lun TWCC1451/2004; HKSAR v Tsang Kwok Hin TWCC1482/2004.

38. www.sentencingadvisorypanel.gov.uk.

39. 2003 1 Crim. App. 28, 463 467 Court of Appeal.

40. While Principal Magistrate Kwok Wai-kin 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), the categories were referred to when His Honour commented on the prosecution's inappropriate categorisation of the materials.

41. SAP sentencing guidelines; www.sentencing-guidelines.gov.uk/docs/advice_child_porn.pdf.

42. See T Krone, ‘A typology of online child pornography offending’, Trends and Issues in Crime and Criminal Justice, No 279, Canberra, Australian Institute of Criminology at http://www.aic.gov.au/publications/tandi2/tandi279.pdf.

43. Ibid.

44. Ibid.

45. See notes 33 and 34.

46. See note 40.

47. Before the PCPO, the supply and distribution of both adult and children pornographic materials were dealt with under the COIAO (Cap 390).

48. Section 8(2)b COIAO. An article is obscene if it is not suitable to be published to anyone whilst an indecent article is not suitable to be published to a juvenile: section 2(2). The Obscene Articles Tribunal has absolute discretion in classifying an article as obscene or indecent: articles depicting violence, depravity and repulsiveness are regarded as indecent and obscene: sections 2(3), S. 6(1) & (2) COIAO.

49. Section 2(1) COIAO.

50. NKCC5804/2002.

51. [2001] 3 HKLRD 381.

52. [2001] HKEC 1289. The term of imprisonment was 6 months imprisonment on each charge. The magistrate on making the sentences concurrent imposed a total sentence of 18 months imprisonment.

53. [2001] 3 HKLRD 521.

54. Deputy Judge McMahon citing with approval HKSAR v Hiroyuki Takeda [1998] 1 HKLRD 931.

55. Section 4(2)(a–d) PCPO.

56. Section 4(3)(d) PCPO. In this section ‘endeavoured’ can be taken to mean ‘took all reasonable steps’.

57. [2002] EWCA 683.

58. Section 160(2)(d) Criminal Justice Act 1988.

59. Note the English case of R (on the application of Harrison) v Isle of Wight Crown Court CO/2980/00 where the defendant argued that six or seven days was not unreasonable time.

60. Section 4(4) & (5)(b) PCPO.

61. HKSAR v Tsang Kwok Hin, HCMA 327/2005.

62. A trojan, named after the mythical Trojan horse, is a remote program that allows someone else to download information on to your computer without your knowledge.

63. Mark Rasch ‘The giant horse did it’, The Register 20 January 2004. All three defendants charged with the possession of child pornography were acquitted as the prosecution failed to prove the defendants' knowledge and intention in downloading the child pornographic images. The defendants argued that Trojan horse programs were responsible for the existence of the pornographic materials. John Leyden ‘Caffrey's acquittal a setback for cybercrime prosecutions’ The Register 17 October 2003. Caffrey was a teenage hacker charged with carrying out a denial of service attack on the computers of the Port of Houston's web server systems.

64. Section 138A Crimes Ordinance.

65. Section 153O Crimes Ordinance.

66. The new Schedule 2 to the Crimes Ordinance lists 24 offences that treat offences committed overseas as having been committed in Hong Kong. The offences includes inter-alia rape, non consensual buggery, homosexual buggery with or by a man under 21, gross indecency, indecent assault, sexual intercourse with a girl below 13 and 16 and encouraging prostitution.

67. See M Jackson ‘Law enforcement in cyberspace: the Hong Kong approach’ in R Broadhurst and P Grabosky (eds) Cyber Crime, The Challenge in Asia, Hong Kong University Press, Hong Kong SARC, 2005, p 243.

68. Reservations were made at the Bill's committee stage by the End Child Sexual Abuse Foundation with an example provided by the Foundation of photographer David Hamilton who specializes in photographing adolescent girls in the nude. Although Hamilton claims his work to be ‘artistic erotica’, a number of courts in the USA have classified it as soft porn.

69. A study has uncovered clubs composed of parents who swap child pornographic materials involving their own children with other like minded individuals and child pornographic distributors. See S T Holmes and R T Holmes Sex Crimes, Patterns and Behaviour 2nd edn, Sage, Thousand Oaks, CA, 2002 (in M M Ferraro and E Casey Investigating Child Exploitation and Pornography, Elsevier Academic Press, San Diego, 2004).

70. Section 218A Criminal Code (Qld).

71. A number of successful operations involving worldwide police cooperation such as Operation Avalanche and Operation Landmark in 1991 and Operation Starburst in 1995.

72. See note 1.

73. See the use of 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).

74. Netsmart rules: www.nchafc.org.

75. Note however that Hong Kong's current approach is in line with their July 2001 Tentative Implementation Plan for cyber crime readiness, which is (a) to strengthen their existing regulatory regime (b) to increase the involvement of the community in the prevention and detection of computer related crime and (c) to improve co-ordination and institutional arrangements to prevent cyber attacks and promote cyber security. See the Secretary of Justice's keynote address at the IEE Symposium on ‘Internet Law in Hong Kong’, 26 September 2003 taken from Jackson, op cit, note 67.