THE QUEEN v. LAI KAM KWAN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1588 of 1990

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BETWEEN

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JUDGMENT

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1. On the 20th December 1989, the appellants were arrested and their stock of video tapes was taken into custody by the Customs and Excise Department. On the 13th June 1990 they were jointly charged with six counts involving copyright infringement and possession of obscene articles and the 2nd apellant was charged with 22 counts of a similar nature. On the 20th June 1990 they pleaded guilty to all charges before the magistrate, the 1st appellant was placed on bail of $75,000 and the 2nd appellant bail of $250,000 pending sentence. The bail in respect of the 2nd appellant was subsequently reduced to $100,000. The appellants who had not been represented at the hearing subsequently took legal advice and an application for review was made to the magistrate at which he was requested to set aside the pleas of guilty and enter pleas of not guilty. The Magistrate refused to do so.

2. The magistrate subsequently properly investigated the matter by hearing evidence from both appellants and from Senior Inspector Mok of the Customs and Excise Department, who the appellants claimed had made statements which induced them to enter the pleas of guilty. It was the evidence of the 1st appellant that Inspector Mok had told him that he would be fined only few thousand dollars and that following the plea of guilty, the tapes would be returned. He also claims that Inspector Mok had told him that a plea of guilty would save lawyer's fees.The first accused said that he had never been to court before and was frightened and confused.

3. The 2nd appellant gave evidence that Inspector Mok had told him that if he was prepared to admit his wife who had been on bail since the date of arrest, would be discharged from bail. The evidence was that the wife of the 2nd appellant was in fact discharged from bail on the 13th June 1990. The 2nd appellant asked Inspector Mok what the fine would be and Mok told him it was a trivial matter, not serious and that he would not be punished heavily. The 2nd appellant said that he thougpt thati if he pleaded guilty, he would get a small fine and most importantly would get the tapes back.

4. It was not disputed that a large number of the video tapes did not infringe and were returnable nable to the appellants, but that had still not been done over six months after the date of arrest.

5. Inspector Mok gave evidence and denied having said anything about what the penalty might be but the magistrate having observed Mok, found he "had been economical with the truth", and went on to find that it was more likely than not that Mok had made observations about the likely penalties and the return of the tapes. He properly inferred that the tapes being referred to were the non-infringing tapes. He did, however, make a further finding that he was satisfied that what was said by Mok did not act upon the minds of the appellants at the time they decided to plea guilty. With respect I cannot agree with this finding. Having decided that Inspector Mok was not a witnesses as to the truth and that he probably had told the appellants about penalty and about the return of the tapes, there existed the possibility that the appellants might have been influenced by what Mok had told them.

6. I am therefore of the view that in the interest of justice their pleas of guilty should be set aside. their fines returned and that there should a trial de novo before another magistrate.