THE QUEEN v. WONG PIK HAR AND OTHERS

-----------------

JUDGMENT

-----------------

Preliminary

1. WONG Pik-har ("D.1"), LAM Shau-han ("D.2") and PANG Ah-fan ("D.3") appeal against their convictions by a magistrate for publishing an objectionable article, contrary to section 4(1)(a) of the Objectionable Publications Ordinance.

2. Section 4(1) provides that -

                "4. (1) No person shall -

                any objectionable article."

3. "Objectionable article" is defined by section 3(1) of the Ordinance as being any article which -

4. By section 2(2) of Cap. 150, a person publishes an article if he -

Factual Background

5. On 6th June, 1986, two police officers, P.C. 19703 CHEUNG Chun Hing (P.W.1), and W.P.C. 18458 LO Yee Ting (P.W.1), entered a hotel at 131 Waterloo Road, Kowloon.

6. The magistrate found the following facts as established -

7. D.1's own cautioned statement contained admissions that she was responsible for collecting money at the hotel and for screening customers.  Also that she was responsible for turning off the switch at the counter if the police were to raid the premises and that she had been ordered to do so in that event. She admitted that the V.C.R. showed "erotic video tapes".

8. In her cautioned statement, D.2 admitted that she led guests to the rooms, that she knew that there were erotic video tapes shown in the rooms andthat D.3 switched on the V.C.R. which showed objectionable videos.

9. The magistrate drew the inference that D.2 knew that Channel 5 was connected to the V.C.R. which showed objectionable films and that she knew how to tune the set in the rooms.

10. He found from the statement of D.3 that he was in charge of the hotel, that he turned on the V.C.R. and that he inserted an erotic video tape into the V.C.R. on the evening in question.

Obscenity.

11. It was argued, though not with great force, that it would be open to me to upset the magistrate's finding that the video film shown in the bedroom to P.W.1 and P.W.2 was objectionable.

12. This submission was based on passages in the judgment of Huggins, J.A. in Mohan Gulabrai Mirchandani and Others v. The Queen⁽¹⁾. At the bottom of page 3, he says -

"Mr. Caird invites us rather to adopt the 'disciplinary test' and to hold that if the article would be considered by the community as a whole to be objectionable that is enough. We think that subject to what we shall say hereafter this is right and we respectifully endorse the view expressed by Hogan C.J. in Attorney General v. Yeung Kam-tsuen⁽²⁾ that -

 

'the magistrate must exercise the community's conscience and treat himself as representing the community's feelings in the matter. If, with those feelings in mind, the publication appears to him to be offensive, then he should treat it as such'."

13. Based on this passage, it was submitted that the community would take a much less strict view of video tapes of an explicit nature which were being shown only to persons who had already booked the room, in which the film was viewed, for the purposes of sexual intercourse.

14. I have not myself seen the film. The  magistrate did see it and described it as showing two persons, the upper half of the body as a woman and the lower half as a man and a woman, all of them apparently enjoying oral sex.

15. There is nothing to indicate that the magistrate, when finding that the films were objectionable, applied the wrong test. His brief description of what he saw affords ample justification for his finding; even making allowance for the fact that the film was only being shown to pairs of adults bent on sexual gratification.

Publication

16. The principal argument advanced on behalf of the appellants, however, was that there was no publication as this is defined in section 2(2) of the Ordinance, because the video tape was not played "to or for the public or a section of the public".

17. Let me put on one side the argument that a police officer on duty is not a member of the public. This point was decided by Barnes, J. in The Queen v. TSANG Mou Yan⁽³⁾. I am satisfied that when the two police officers entered the hotel, they were members of the public. It is contended, however, on behalf of the appellants, that when they booked a room and paid the rent for it, they were transformed from members of the public into guests of the hotel.

18. I was referred to a number of cases which were said to bear on this question. Firstly, CHAN Man and Others v. The Queen ^(4), in which the defendants were charged with exposing a floor show of an indecent nature "to the public view". The magistrate found, and it was not challenged on appeal, that the show was of an indecent nature.

19. Members of the public were only admitted to the show if they paid a fee of $10 and were given a membership card of the club in which the show was staged.

20. Huggins, J.A., sitting as a Judge of the High Court, was satisfied, on the findings of the magistrate, that there was no exposure to the public view, since he felt unable to come to the conclusion that the club was a sham. The inference to be drawn from this finding, though it is not expressed, is that if he had been satisfied that those who saw the show were not genuine members of the club, he would have been prepared to find that there was an exposure of an indecent show to the Public view.

21. Counsel for the Crown relied on Panama (Piccadilly) Ltd. v. Newberry⁽⁵⁾, and in particular on the following passage in the judgment of Lord Parker, C.J., at page 771 -

"Counsel, who has said everything that can be said for the appellant, says that, once a man has signed an application form for membership and has paid his money, he ceases to be a member of the public, and has acquired a different status, namely, a status as a candidate for the club, something different from a member of the public. For my part, I cannot possibly accept that contention. He began as being a member of the public and ended as being a member of the public. Indeed, I would go further if it were necessary in this case, because it seems to me that even a so-called elected member of this club would still be a member of the public."

22. Lord Parker, C.J. commented on the above case in Severn View Social Club and Institute Ltd. v. Chepstow (Monmouthshire) Justices ⁽⁶⁾ in the following terms -

"The justices must have misconstrued what I said in the Panama (Piccadilly) Ltd. case treating the very special facts of. the case as of general application. That case was one of a so-called club at which the doorkeeper would stand and say: 'Do you want to see the show' ......... and if the member of the public said 'Yes,' he was asked for 25s. and told to fill up a form. ........... In those circumstances this court had no hesitation in saying that that man was not a bona fide member of a bona fide club, but was throughout a member of the public. In my judgment this is a wholly different case in which neither the members nor their guests were members of the public."

23. The effect of these cases seems to be as follows -

24. None of these cases bears directly on the question which I have to decide, which is whether it is "publication" to a section of the public for those in charge of a hotel to publish, through video equipment, objectionable matter to hotel guests in the private rooms which they have rented.

25. Clearly, in the context with which I am concerned, a person can change his status. He can be a member of the public when he is walking to his home. However, once he is within his home he ceases to be a member of the public if he is present within those premises at the showing of objectionable matter whether to himself alone or to chosen friends.

26. I must now turn to the crucial question, which is whether a guest in a hotel remains, when within the room which he has hired, a member of the public, or whether his capacity as such is absorbed into that of a hirer of the hotel room generally called "a guest".

27. I was referred to LEUNG Shui and Others v. The Queen ⁽⁷⁾, in which Cons, J. was faced with the question of whether gambling was lawful if it took place in a hotel room.

28. The Gambling Ordinance, under which the prosecution was brought in that case, provided that gaming is lawful if it is played "on a social occasion in private premises".

29. The magistrate had found that the hotel was "premises" to which the public had access and that therefore could not be properly described as "private premises". Commenting upon this, Cons, J. observed -

"With every respect to him that is not a correct conclusion. A guest does not have a right of access to a hotel room.............. What a guest has is a right not to be refused access ......... When the guest enters the hotel room allocated to him by the landlord he does so only by permission of the landlord, not under any right to enter in himself. The premises are thus private premises within the definition set out in the Ordinance........  It must surely follow that the guest is entitled to exclude all others from that room during the course of his occupancy, except perhaps hotel staff engaged in the proper business of the hotel."

30. This decision is thus dealing with the status of premises, rather than with that of its occupiers. None of these decisions is sufficiently directly upon the point to bind me. So that I must reach my own conclusion

31. In my view, the circumstances in which the objectionable video films were shown do not fall within the requirement of "publication" as defined by section 2(2) of Cap. 150.

32. In my judgment, when a hotel guest has booked a room and occupied it, he has changed his status, while he is within it, from that of a member of the public to that of hotel guest, so far as the application of this Ordinance is concerned.

33. The film is shown only in the hotel bedrooms, into which only authorized guests are permitted to enter, other than hotel staff. This was the effect of the evidence given by D.1, which was not seriously challenged.

34. Just in the same way as a host at home is entitled to show an objectionable film to his friends in the privacy of his house without this amounting to publication of it to a section of the public, so I think the hotel owner is entitled to exhibit an objectionable film within bedrooms, access to which is open only to those who have paid the fee to become guests of the hotel.

35. The appeals of all three appellants are allowed and their convictions quashed. Their fines, which have been paid, are to be returned to them.

36. Although I have differed in my conclusion from the magistrate, I would like to commend the care and good sense with which he dealt with a case of some difficulty.

⁽¹⁾    Crim. APP. No 266/77

⁽²⁾    [1962] H.K.L.R. 663, 667

⁽³⁾    Mag. App No.39/85

⁽⁴⁾    Crim. App. No.26 of 1976

⁽⁵⁾    [1962] 1 All E.R. 769

⁽⁶⁾    [1968] 1 W.L.R. 1512, 1514

⁽⁵⁾    [1962] 1 All E.R. 769

⁽⁷⁾    Crim. App. No. 927 of 1977