2. Defences

2. Defences

It is a defence to the offences under section 4 of the Prevention of Child Pornography Ordinance (Cap. 579) if it is established by the Defendant on a balance of probabilities that:

1. the depiction has artistic merit; or
2. the thing alleged to constitute child pornography is or was at the time the alleged offence was committed classified as a Class I or a Class II article under the Control of Obscene and Indecent Articles Ordinance (Cap. 390).

Except for an offence of possession of child pornography under section 3(3), it is established by the defendant on a balance of probabilities that:

1. the act done was for a genuine educational, scientific purpose;
2. the act subject to the charge otherwise served the public good and did not extend beyond what served the public good;
3. that he or she had not seen the child pornography and did not know or have any reasonable cause to suspect it to be child pornography; or
4. that he or she had:
   1. taken all such steps as were reasonable and practical in the circumstances of the case to ascertain the age of the person pornographically depicted in the child pornography when originally depicted;
   2. if able to influence in any way how the person was depicted, had taken all such steps as were reasonable and practicable in the circumstance of the case to ensure that the person was not depicted as a child; and
   3. believed on reasonable grounds that the person depicted was not a child when originally depicted and that the person was not depicted as a child.

For the offence of possession of child pornography (section 3(3)), it is also a defence for the defendant to establish on a balance of probabilities that:

1. possession of the child pornography was for a genuine educational, scientific or medical purpose;
2. possession of the child pornography otherwise served the public good and did not extend beyond what served the public good;
3. he or she had not seen the child pornography and did not know, nor suspect, it to be child pornography;
4. he or she had not asked for any child pornography and, within a reasonable time after it came into possession endeavoured to destroy it; or
5. he or she 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.

The defences to possession of child pornography (section 3(3)) are separate from the other child pornography defences provided by section 4. The defence to possession of child pornography provided by section 4(3) applies only to section 3(3) offences. The defence under section 4(3) is only established if the defendant adduces sufficient evidence to raise an issue of the truth of the facts relied upon and the contrary is not proved by the prosecution beyond reasonable doubt. The other defences in section 4 place a burden upon the defendant to prove the facts relied upon on the balance of probabilities.