Video of kindergarten girl peeing not child porn, court rules

A former kindergarten director has won an appeal against his conviction for filming a four-year-old girl urinate, as a High Court judge ruled the video did not constitute child pornography. 

Eric Ma Cho-yiu was sentenced to three-month imprisonment by Kowloon City magistrate Raymond Wong Kwok-fai in 2020 for producing child porn, after he secretly filmed a young girl while she peed inside a washroom in his flat on Austin Road West between August 2014 and November 2018.

He had been granted bail of HK$20,000 pending appeal, but was not allowed to leave Hong Kong.

On Monday, High Court overturned his conviction on the ground that the video of the girl urinating was not child pornography. 

High Court judge Joseph Yau Chi-lap said the intention of Ma installing a hidden camera in his toilet was clear. But he had to be acquitted due to the city's stringent judicial system, and should learn his lesson.

Under the law, child pornography is defined as a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a person who is a child, or is depicted as one under the Prevention of Child Pornography Ordinance.

Pornographic depiction means 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.

In this case, the clip captured the girl urinating and clearly showed her private part. Therefore, in determining whether it was a pornographic depiction, the judge said the criteria should be whether an ordinary person in his or her right mind, considering the content and circumstances of the case, would consider it to be a pornographic depiction.

“Although the footage clearly showed the girl's private part, it did not contain any direct or indirect sexual elements, and the exposure was not in a sexual manner or situation," Yau said. "Thus, it could not be considered pornographic depiction beyond a reasonable doubt."

Even if the defendant had obscene intention installing a hidden camera in the toilet, it could not change the fact that the content of the clip did not qualify as child pornography.

Ma's barrister raised eight points supporting the appeal, including six saying the original magistrate  committed legal errors at different stages. None of them were accepted by the High Court judge. 

Yau also rejected another argument that the magistrate had applied the wrong standard of proof to determine the authenticity of the footage.