Hong Kong Ordinances

PREVENTION OF CHILD PORNOGRAPHY ORDINANCE - SECT 4

Defences

(1) It is a defence to a charge under section 3 for the defendant to
establish—

   (a)  that the depiction that is alleged to constitute child  pornography
        has artistic merit; or

   (b)  that the thing that is alleged to constitute child pornography is, or
        was at the time the offence is alleged to have been committed,
        classified as a Class I or a Class II article under the
        Control of Obscene  and Indecent Articles Ordinance ( Cap 390).

(2) It is a defence to a charge under section 3 (other than section 3(3)) for
the defendant to establish—

   (a)  that he committed the act that is the subject of the charge for a
        genuine educational, scientific or medical purpose;

   (b)  that the act that is the subject of the charge otherwise served the
        public good and did not extend beyond what served the public good;

   (c)  that he had not seen the child pornography and did not know, nor did
        he have any reasonable cause to suspect, it to be child  pornography;
        or

   (d)  that—

        (i)    he took all such steps as were reasonable and practicable in
               the circumstances of the case to ascertain the age of the
               person pornographically depicted in the child pornography when
               originally depicted;

        (ii)   in so far as the defendant was able to influence in any way how
               the person was depicted, he took all such steps as were
               reasonable and practicable in the circumstances of the case to
               ensure that the person was not depicted as a child; and

        (iii)  he believed on reasonable grounds that the person was not a
               child when originally depicted and that the person was not
               depicted as a child.

(3) It is a defence to a charge under section 3(3) for the defendant to
establish—

   (a)  that his possession of the child pornography was for a genuine
        educational, scientific or medical purpose;

   (b)  that his possession of the child pornography otherwise served the
        public good and did not extend beyond what served the public good;

   (c)  that he had not seen the child pornography and did not know, nor did
        he suspect, it to be child pornography;

   (d)  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; or

   (e)  that he believed that the person pornographically depicted in the
        child pornography was not a child when originally depicted and that
        the person was not depicted as a child.

(4) Unless subsection (5) applies, a defendant is to establish any fact that
needs to be established for the purpose of a defence under this section on the
balance of probabilities.

(5) A defendant charged with an offence under section 3(3) is to be taken to
have established any fact that needs to be established for the purpose of a
defence under subsection (3)(c), (d) or (e) if—

   (a)  sufficient evidence is adduced to raise an issue with respect to the
        fact; and

   (b)  the contrary is not proved by the prosecution beyond reasonable doubt.