R. v. YU TIN CHI, Candy and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1359 of 1996

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J U D G M E N T

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1. This is an appeal from a decision of Mr Sinclair of two persons, one is the manager and, a 20 year old girl who was an employee of a video and laser shop. What happened was that people from the Television Authority went in and seized a large number of videos and laser discs, there were some 4,500 in the shop so this seems to be quite a substantial shop and this young girl apparently had not been working there very long. They were both charged with possessing indecent articles for the purpose of publication without displaying a notice which is a notice prescribed under the Control of Obscene and Indecent Articles Ordinance, Cap.390.

2. What this means is that for certain categories of films, which are generally called Categories II and III, if they are sold or distributed or rented to the public, a warning notice must be placed on it to prevent people under the age of 18 getting hold of it. This warning reads :

"WARNING : THIS ARTICLE CONTAINS MATERIAL WHICH MAY OFFEND AND MAY NOT BE DISTRIBUTED, CIRCULATED, SOLD, HIRED, GIVEN, LENT, SHOWN, PLAYED OR PROJECTED TO A PERSON UNDER THE AGE OF 18 YEARS."

The warning has to be in both English and Chinese and the notice should cover 20% of each cover of the article. So if one goes to a laser shop and gets a film which may be a thriller, a horror film or something like that, and it is categorized as class II or class III, it has to have this warning notice printed on so that one can see it. Sometimes it is on the front and sometimes it is on the back.

3. What had happened was that the law had been altered in 1995 to make this a much larger warning. It was thought by the Authority that the current warning which was in much smaller letters was not sufficient to prevent young people getting hold of these laser discs and tapes.

4. I do not know why the young girl was charged in the first place, it seems to me to be quite wrong in principle to charge young employees for this sort of offence who did not appear to have control of anything, when you can get the manager or the owner of the shop. The 2nd appellant was indeed the shop proprietor. There was no doubt at all that these particular discs, some 18 out of 4,500 offended the provision of the Ordinance and therefore a statutory offence is committed. But the law permits a defence to be put up by virtue of s.27A which was also added in 1995 because otherwise it would be unjust not to allow people to have some defence. One of the defences is if one is licensed to broadcast under the Television Ordinance, and you have it for that purpose, then it is no offence. For example, on the Cable Television they are permitted to broadcast Category II and Category III films. They tend, in my knowledge of the case I tried, to do this at late hours and generally warnings are given about the subject matter of the film. So Wharf Cable Television Company which has a licence under the Television Ordinance does not commit an offence. Further, there is a definition of the word "material" which does not include the material which is broadcasted under the Television Ordinance.

5. For some unknown strange reason, the barrister appearing took the point under theTelevision Ordinance and put forward some very complex and convoluted submissions, no doubt confusing the magistrate who then considered all these matters about the Television Ordinance and, with respect to him, it was very difficult for him. It was a pity he had not read a judgment of mine which defines what broadcasting is, but he appeared to come to the conclusion that Cable Television is not broadcasting. He was quite wrong about that. See Wharf Cable Ltd. v. Attorney General, MP1493/95.

6. Be that as it may, the proper grounds of defence were not taken, the young girl did not even give evidence. It seems to me, although Mr Lo very properly has said that they were represented by Counsel and therefore the only person they got to blame really is their Counsel, that it is unjust that this young girl has not really had a proper trial. This is a conviction, all criminal convictions are important. Though she was only fined, but it might have some effect on her future, I do not know. At any rate it seems to me, as a matter of justice, that she has clearly been deprived of the opportunity of having a defence put forward because she is permitted to say that she did not have an opportunity going round looking at these lasers and video tapes and she may have thought that the label was sufficient.

7. In so far as she is concerned, therefore, I would allow her appeal.

8. As far as the 2nd appellant is concerned, the position is more difficult. He is the proprietor. Although the law was changed and therefore as Mr Lo properly pointed out, he is not permitted to plead ignorance of the law, nevertheless, he may have said that he had good and sufficient reasons to believe that the requirements had been complied with because these had come from proper suppliers. Again, it seems to me he has been deprived the opportunity of having his case considered fairly.

9. As I said, I do not criticize the magistrate, I think he was led wrongly by Counsel to consider the Television Ordinance. He had made very detailed findings about that which, although they are wrong, demonstrated that he was clearly trying to solve the problem that he was given. But it seems to me that one has got to look at these matters fairly and, in my judgment, these two really had been deprived of the opportunity of having their defence considered. I would listen to Mr Lo as to what now should happen.

10. I allow the appeal of the 2nd appellant, but I order a re-trial.