HKSAR v. TSANG SIU MING

HCMA26/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 26 OF 1999

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J U D G M E N T

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1. The Appellant was charged together with two persons D1 and D2 for the offence of possession of obscene article for the purpose of publication, contrary to s 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap 290, in that they together on 19 August 1998 at Shop 113, Kwun Tong Plaza, 68 Hoi Yuen Road, Kwun Tong, possessed for the purpose of publication an obscene article, namely, 917 obscene video compact discs ("VCDs"). The Appellant was D3 before the Magistrate. D1 and D2 pleaded guilty respectively before different magistrates, leaving D1 to fight his own case before the Magistrate.

2. After the prosecution called some police officers as witnesses, the Appellant gave evidence and he called D1 and D2 to give evidence on his behalf. At the end of the trial, the Magistrate convicted the Appellant and sentenced him to eight months' imprisonment.

3. In both the reasons given at the time of convicting the Appellant and the Statement of Findings, the Magistrate stated that he took into account the Appellant's clear record and what that involved as to credibility in respect of his evidence and propensity with which to commit an offence. The Magistrate found the prosecution witnesses to be honest and believable witnesses and accepted what they said in evidence. PW1, the Police Officer who effected the arrest of the three defendants, gave a clear account of what he saw and heard going on in or in front of Shop 113, that was, that the Appellant and another person, D2, were holding VCDs and shouting to attract customers, "Two for $100, new arrivals from France in Hong Kong". PW1's observation took place when he was about seven feet away from the shop. PW1 also said that the Appellant and D2 attempted to roll down the steel door and were stopped by him.

4. The effect of the evidence of the Appellant and his two witnesses is that the Appellant was just passing by the shop when he saw D2 there whom he had known for some time. He had a chat with D2 and on being invited, he went inside the shop, picked up some VCDs and looked at them. Suddenly, somebody said that police were arresting people and when the Appellant wanted to leave, he was stopped by a person claiming to be a policeman, namely, PW1. The Magistrate was not impressed with D1 or D2 when they were giving evidence. He did not believe them and rejected their evidence. He pointed out that D2 gave evidence conflicting with that of the Appellant, in relation to the length of time that they knew each other and what was talked about while they met at Shop 113. The Magistrate rejected the evidence of the Appellant and his two witnesses.

5. Taking into account the evidence that he accepted, namely, that the Appellant with another defendant were offering VCDs for sale and shouting the slogans for touting customers, and that they were attempting to pull down the gate on the arrival of the police, the Magistrate came to the conclusion that the evidence was clear, cogent and compelling, and the irresistible inference from the whole of the evidence was that the Appellant was guilty of the offence as charged beyond reasonable doubt.

6. I have checked the transcript of the evidence very carefully, and noted that the Appellant, as well as each of his witnesses, D1 and D2, insisted when giving evidence before the Magistrate that the Appellant was only a passer-by, an acquaintance of the D2, did not shout slogans, and was merely handling VCDs for the purpose of viewing. I also note that both D1 and D2 had pleaded guilty before either the same Magistrate or another Magistrate before they gave evidence on behalf of the Appellant. These two Defendants appeared not to have anything to gain from giving evidence to exonerate the Appellant. However, the Magistrate appeared not to have taken this significant aspect of the case into account, especially in view of the fact that the Appellant was not legally represented. There is evidence that there were some customers inside the shop when PW1 forbade people inside the shop to leave. Yet there was no evidence as to why these customers were allowed to leave eventually whereas the Appellant was not.

. In R v Cooper [1969] 1 QB 267, which was approved and adopted in Wong Leung [1973] HKLR 512, the English Court of Appeal had the following to say, at p 271F of the report:

"... we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."

7. I also remind myself of what fell from Litton JA, as he then was, in The Queen v NG Wing Ming, Crim App No 280 of 1994 (5 August 1994, unreported) that apart from the demeanour of witnesses that the trial court had the opportunity to observe, the inherent probabilities of the case should be sufficiently weighed in the scales for making a decision.

In the present appeal, I am impressed by the insistence of the Appellant during the whole course of the trial before the Magistrate that he was a mere passer-by and he stopped to look at VCDs and chat with D2 by chance. Despite his not being legally represented, he insisted on calling and did call D1 and D2 to give evidence in his defence. The discrepancies between his evidence and D2's evidence regarding how long they had known each other and the exact subjects of the conversation were not so crucial as should have properly affected the credibility of the Appellant and his witnesses. What is most significant is the difficulty in identifying a motive for the two other defendants, who had both pleaded guilty, to lie to exonerate the Appellant. In the circumstances, I feel a lurking doubt whether justice has been done by convicting the Appellant. I would therefore allow the appeal against conviction. The conviction is quashed and the sentence set aside.