R. v. OCEAN VIDEO INC

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 635 OF 1995

__________

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

H E A D N O T E

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

Control of Obscene and Indecent Articles Ordinance, Cap.390.

Section 21(1)(b) - possession for the purpose of publication - meaning of "publication".

Articles in transit from USA to Macau - not for publication in Hong Kong - whether publication outside Hong Kong falls within section 21(1)(b).

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 635 OF 1995

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

J U D G M E N T

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

Hon Yang, C.J.:

1. This is an appeal from a magistrate's order for forfeiture of 298 laser discs under section 40(1) of the Control of Obscene and Indecent Articles Ordinance, Cap.390.

2. Pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap.227, Mr Justice Ryan ordered the appeal to be argued before the Court of Appeal.

3. The matter arose in the following manner.

4. On 7 February 1994, 298 laser discs were seized by members of the Customs and Excise Service at the Hong Kong Airport. The discs had just arrived from the USA and were packed in boxes with an address in Macau, accompanied by an Airway Bill naming a person in Macau as consignee. The consignor was Ocean Video Inc.

5. It was accepted by the Customs and Excise Service that the discs were not intended for circulation in Hong Kong on that particular day.

6. The discs were subsequently submitted to the Obscene Articles Tribunal and were all classified as Class III ("Obscene").

7. No person has been prosecuted for or convicted of any offence in respect of the discs.

8. The facts as stated above are not in dispute.

9. We now come to the relevant provisions in the Control of Obscene and Indecent Articles Ordinance, Cap.390.

10. By section 40(1), subject to subsection (2) and section 41, where an application is made to a magistrate for an order for forfeiture:

"(a) he shall, in the case of an article that is before him and is liable to forfeiture under section 39(1), order it to be forfeited;

(b) .....

(c) ....."

11. We are not here concerned with subsection (2) or section 41.

12. Section 39(1) provides that any article which is (a) obscene; or (b) classified, other than by virtue only of an interim classification, as a Class III article, shall be liable to forfeiture.

13. The seizure of the discs was made by members of the Customs and Excise Service under section 36 of the Ordinance. It provides:

" In addition to any power he may have under section 34, any member of the Customs and Excise Service may seize, remove and detain -

(a) any article in respect of which he reasonably suspects that an offence under section 21(1)(c) or 26(c) has been or is being or is about to be committed."

14. We are not concerned with section 26(c).

15. Following the seizure the discs were taken before the magistrate to be dealt with: vide section 37.

16. Section 21, which is the section that most concerns us, particularly subsection (1)(c), reads:

"(1) Subject to subsection (2) any person who -

(a) publishes;

(b) possesses for the purpose of publication; or

(c) imports for the purpose of publication,

any obscene article, whether or not he knows that it is an obscene article, commits an offence and is liable to a fine of $1,000,000 and to imprisonment for 3 years."

17. Subsection (2) deals with defences and need not concern us here.

18. The word "publishes" is defined in section 2(4)(a). It reads:

" For the purposes of this Ordinance, other than section 24(1E) and (1F), a person publishes an article if he, whether or not for gain -

(a) distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public;"

19. We are not concerned with section 24(1E) and (1F).

20. The word "import", which appears in section 21(1)(c) is defined in the Interpretation and General Clauses Ordinance, Cap.1. It provides that "import" means to bring or cause to be brought into the Colony by air, land or water. The definition is therefore wide enough to cover the present situation where the discs were not destined for Hong Kong but had been brought into Hong Kong by air in transit from the USA to Macau.

21. Mr McCoy, counsel for the appellants, suggests that a number of questions required to be examined:

22. Whether the seizure of the discs by the Customs and Excise Service was lawful under section 36? If not, then the discs could not have been lawfully taken before the magistrate under section 37. Could members of the Customs and Excise Service have reasonably suspected that an offence under section 21(1)(c) had been committed? Had the discs been "imported" into Hong Kong? What is meant by the words "for the purpose of publication"?

23. In spite of the number of questions asked, as conceded by Mr McCoy, there is only one narrow issue, and it is whether or not an offence under section 21(1)(c) can only be committed if the import of the discs was for the purpose of publication "in Hong Kong".

24. The magistrate in making the order of forfeiture relied on the judgment of O'Connor, J. in Yick Hin Tong v. The Queen (1991) 1 HKC 441, at 446E:

" The words of the legislation are not limited, on their face, to possession for publication in Hong Kong. If a person possesses such articles in Hong Kong for the purpose of publication abroad, he does possess them in Hong Kong for the purpose of publication and is within the ambit of the legislation. I do not accept that the Hong Kong legislation was intended to leave scope for, or to tolerate Hong Kong being a source of international pornographic pollution. Any such suggestion is repugnant."

25. Mr McCoy argues that the publication must be publication in Hong Kong. The legislature cannot have intended section 21(1) to have any extraterritorial effect. Here there being no evidence that the discs would be published in Hong Kong, there was no offence under the subsection.

26. In Gold Star Publications Ltd v. DPP [1981] 1 WLR 732, the House of Lords had to decide a similar issue. Though the legislation, i.e. the Obscene Publication Act, 1959, was somewhat different from our Ordinance, the line of reasoning is equally applicable. There Lord Wilberforce said (at 734C to 735A):

" My Lords, section 3 of the Obscene Publications Act 1959 entitles the police, upon warrant issued by a magistrate, to seize and remove obscene articles from premises in which they are 'kept for publication for gain.' By subsequent proceedings, the articles so seized may be forfeited. In the appellants' export warehouse at Whyteleafe, Surrey, the police found a large number of magazines which were, according to standards applied in England, undoubtedly 'obscene articles' - viz. hard pornography. Of these the great majority, some 150,000 in all, were, according to the appellants' contentions, which the justices and the Crown Court must have accepted, for export to Europe, America, Africa and elsewhere abroad, though there were a few destined for sale in this country by mail order. This has given rise to the certified question of law whether the Act applies not only to material published in this country but to material destined for publication overseas. The issue depends entirely upon the scope to be given to the words ' kept for publication for gain,' in, of course, their context. I do not think, though the contrary was submitted, that the case raises any question as to the territoriality or extraterritoriality of United Kingdom legislation - the property in question is located in this country, and the disposal of it by the police is to take place in this country. Nor are authorities as to composite crimes, that is, crimes of which some elements may occur within and some outside the jurisdiction, of any help or relevance. Nor is the fact, if it be so, that property interests of foreigners may be affected by the seizure of any relevance. Foreigners may be, and commonly are, interested as importers, or indeed as publishers, of obscene literature or articles, but within the United Kingdom they are totally subject to our laws against obscenity.

The relevant words are quite general, but it is necessary to consider the implications of holding that they apply to articles intended for export. The question is quite a legitimate one whether Parliament intended this piece of legislation to apply to articles which could not deprave or corrupt the British public, but were being sent to places outside the jurisdiction of English courts.

There were two objections against ascribing this intention to Parliament. First it may be said that to do so would be a kind of moral imperialism, or at least paternalism. The answer to this is that Parliament's intentions cannot be limited in this way. Parliament may well have desired to prevent this country becoming the source of a flourishing export trade in pornography, and may have thought that profits made by exports could help to sustain domestic trade. The words 'for gain' seem to me significant. Further, the Act does not apply to Scotland or Northern Ireland, so it would follow from the appellants' argument that articles destined for those parts of the United Kingdom could not be seized. It seems to me most unlikely that Parliament can have intended this, and if not, it must follow that articles destined for export to other countries must be capable of seizure. One may add that to exempt articles intended for export would offer an easy pretext for avoiding the application of the section. So I cannot accept that Parliament must be supposed to have intended to confine this power to articles intended for publication in England or Wales."

27. It seems to us that the law is clear. With respect we follow the judgments of O'Connor J and Lord Wilberforce. In our judgment, the phrase "for the purpose of publication" is not limited to publication in Hong Kong.

28. Though the standards of what constitutes obscenity may be different in different cultures - and here we can only judge the issue by our own concepts of morality and propriety, we may assume that on this sort of question, we should not encourage publication of any articles abroad which we ourselves find repugnant. Comity of nations cannot be preserved if the opposite view prevails.

29. The appeal is dismissed.