THE QUEEN v. TSANG MOU YAN

1987 No. 187
(Criminal)

IN THE COURT OF APPEAL

________________

________________

J U D G M E N T

________________

Penlington, J.

1. The applicant was convicted after trial by Cameron D.J. on five charges of publishing obscene video tapes, (Charge 3) having such tapes in his possession for gain (charges 4-6) and: importing: such tapes (Charge 7). He was sentenced to two years imprisonment on each charge (concurrent). In addition a 6 months suspended sentence passed for a similar offence in March 1986 was activated and ordered to be served consecutively. He now seeks leave to appeal against all convictions and sentences.

2. The evidence was that on the 24th July Police Officers met the defendant at the Lung Kee Restaurant, Des Voeux Road, Central, where he was told they wished to purchase 50 obscene video tapes. He said that he could supply them and a sum of $500 was paid to him as deposit. The applicant then left and shortly afterwards, outside the restaurant, one of the police officers found the applicant with a box in which were 50 obscene tapes. He was then arrested and searched. A blank invoice was found with the heading "Evergrowth Trading Company, Room 804 Blissful Building, 247 Des Voeux Road, Hong Kong". Also found on him were other invoices and a price list for pornographic video tapes. The $500 which had been given to the applicant was later found in his shoe.

3. The premises at 804 Blissful Building were searched, entrance to the main room being gained by using keys found on the defendant. Inside were two partitioned rooms and access was only gained by forcing these open; the applicant did not have the keys. Inside the rooms a total of 85 other obscene video tapes were found together with the applicant's name card and catalogues of obscene tapes. It would seem from a large number of documents of various sorts found in the premises that they were used by Evergrowth Trading Co. and Walters Trading Co. There were numerous letters from overseas suppliers of obscene tapes, addressed in some instances to the applicant as manager of those companies. The applicant said he was responsible for “watching” these companies but was not the proprietor.

4. The applicant's home was also searched and there, again, a further 200 obscene tapes were found. Under caution the applicant said these tapes were his and not his family's. There was a large quantity of documents found which indicated that whoever was running the business at 804 Blissful Building was engaged in substantial importation of obscene cassette tapes from Europe. Also in the applicant's home there were four video recording machines which could have been used to duplicate tapes and there were 15 blank tapes. It was the applicant's evidence that he needed four machines because on one occasion he wished to simultaneously record four T.V. programmes.

5. In respect of Charge 3, the 50 tapes found in the box outside the Lung Kee Restaurant, it was the applicant's evidence that the ones he brought to sell were not obscene. He knew the buyers were police officers and wished to trick them and to see their reaction when they discovered that the tapes did not match the pornographic outside labels. The tapes produced in court were not the ones he had sold the police officers. On the charges relating to having possession for gain of the tapes in 804 Blissful Building, Charges 4 and 5, the applicant denied that the companies were his but said he gave minor assistance in their management. He helped the boss with his English which was why some letters were addressed to him.

6. In respect of the tapes found in his own home the applicant said they were his own private collection and he did not have them for gain, while as regards the 7th Charge, importing an unknown number of obscene tapes, the applicant admitted he did so but said again they were for his own collection.

Grounds of Appeal

7. The line of defence to each charge was fully put forward at the trial by the applicant's experienced counsel. All arguments were fully considered by the trial Judge who acquitted the applicant on 2 other charges but convicted him on Charges 3 to 7. Before us the applicant, who was unrepresented, put forward further grounds, some of which were hot easy to follow. However he emphasised the following points: -

(a) "He did not have the keys to the partitioned rooms at 804 Blissful Building nor to the desks therein where some tapes were found. There was no evidence that he owned the companies which carried on business there.

(b) There were no duplicates amongst the tapes found in his home (though there were some which were the same as in the office) and the recording machines were not connected in Court in the same way as when found. There was a T.V. booster to amplify T.V. programmes which supported his evidence that he was recording such T.V. programmes.

8. We consider that the evidence against the applicant in respect of each charge was strong. All matters raised on his behalf either at trial or here were fully considered by the trial Judge and we see no reason whatever to interfere in his findings of fact. The application for leave to appeal against conviction is therefore refused.

Sentence

9. The applicant here also seeks leave to appeal against the sentences passed. He received a sentence of two years' imprisonment on each charge, all sentences to be concurrent and a suspended sentence which had been passed in March 1986 of six months imprisonment was activated and ordered to be served consecutively. He told us he did not realise the tapes were objectionable.

10. The applicant was quite clearly, from the evidence, in a substantial way of business in importing and distributing obscene video tapes. Furthermore, he was first convicted of the offence of importing these articles in 1981 and was fined $53,000. He was convicted later in that year and fined $1,500 and again in 1981 he was fined a total of $18,000. In 1983, he was fined $4,000 and given a suspended sentence. He was fined again in 1984 and in 1986 fined $10,000. Finally in March 1986, he was fined $10,000 and given a six months' sentence, suspended for 2 years. He has therefore had every conceivable opportunity to cease this business of importing and distributing obscene video tapes. It is obviously a profitable business as he had been apparently content to pay substantial fines and continue the business in blatant defiance of the penalties imposed on him.

11. The maximum sentence for these offences is one of the three years' imprisonment plus a fine of $100,000 in relation to each objectionable article. In view of the applicant's course of conduct over the last six years, we do not consider that tile sentences imposed were excessive. The application is refused.