THE QUEEN v. TSANG MOU YAN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL N0. 39 OF 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was convicted on three charges of offences against section 40(1)(b) of the Objectionable Publications Ordinance ("the Ordinance"). Two of the charges related to the offence of publishing an objectionable article and the other to the offence of having for publication for gain objectionable articles. All the objectionable articles were video tapes containing matter of an obscene nature.

2. In order to publish within the meaning of the Ordinance a person must distribute, circulate, sell, lend, or expose for sale, etc., "to the public or a section of the public".

3. The principal ground of appeal was that

"there was no evidence of any sale distribution or circulation of any objectionable articles to the public nor to any section of the public, nor of possession for such purpose."

4. The sales had been made to undercover policemen. The Appellant's submission was that such a sale could not be a sale to a member of the public and it was argued that the following extract from the speech by Lord Simon of Glaisdale in Charter v. Race Relations Board (1) supported the submission:-

"It must be presumed that the words 'to the public or a section of the public' were inserted for some purpose. To what was the draftsman referring? We all have, we hope, a spark of unique personality. But every one of us plays a number of roles in life. We are children, husbands or wives, mothers or fathers, members of some association, passengers in a bus, cinemagoers, workers with varying status in industry or commerce or profession, adherents of a religious denomination, parliamentary or local government electors, nationals of a state, together with countless other personae in the course of a lifetime - many in the course of a day - some, indeed, simultaneously. Certain of these roles lie in the public domain; others in the private or domestic. When the draftsman used the words 'provision to the public or a section of the public' he was contemplating, I think, provision to persons aggregated in one or other of their public roles."

Although Lord Simon said later in the same speech that no judicial pronouncement about the meaning of words in one statutory context can provide any close guidance about the meaning in a widely different statutory context, I will assume that what he said in the context of statute dealing with racial discrimination is apposite in a statute dealing with objectionable articles. In this case, using Lord Simon's approach I would ask myself: in what domain was the undercover policeman playing his role - in the public or the private/domestic? The answer must be: "in the public". If I stand on the other side of the counter and ask: "With what was the Appellant connected -  the public sale of tapes or merely a private/domestic arrangement?”, the answer must again be: "Public'". The disguise masked the policeman's private intentions but it did not remove him from the aggregate formed by the "shopping public". I see no substance in this ground.

5. In relation to the two charges of publishing it was submitted that there was insufficient evidence to connect the Appellant, in each case, with the particular transaction relied on as constituting the offence.

6. The evidence established that there had been a course of dealing whereby the sale of video tapes containing matter of an obscene nature could be arranged at premises in Des Voeux Road Central, being the address of a firm registered under the Business Registration Regulations in the name of Walters Trading Co. No sale of any such tapes took place at those premises. An inquirer who visited those premises and indicated an interest in buying such tapes was given a catalogue containing a list of titles of objectionable and other video tapes together with a business name card and told to telephone the number on the card. Objectionable tapes were obtained in this way by police officers posing as prospective buyers and buying elsewhere than at the premises of Walters' Trading Co. from the person they were able to contact by telephoning the number on the card. Three such transactions were proved. On 20 July 1984 thepolice officer who went to the premises and asked for "blue tapes" was told by a male that no such tapes were kept at the premises but -

"... if you really want to buy them then I will give you a name card and you can page my outdoor salesman for them."

That male was not the Appellant and there was no evidence that he was in or about the premises that day. Nor was the Appellant the man who had to be contacted to complete the sale. On 151 August 1984 the Appellant was at the premises and was the person who supplied the catalogue and name card. The officer who visited the premises that day said that the Appellant told him that "he was the one in charge". It is not clear from the evidence whether the Appellant meant he was always in charge or was in charge merely for the purpose of attending to customers at that particular time. On 29 August 1984 the police customer was again attended by a man - not the Appellant, presumably, because the witness was not asked to, and did not, identify him at the trial - who said there no "blue tapes" at the premises but that the inquirer could obtain them by telephoning the number on a business card stapled to a catalogue which he handed over. Later that same day, when a police party visited the premises to execute a search warrant, the Appellant was at the premises. The inspector who led the party said that the Appellant told him "he was a staff". A certificate issued under the Business Names Regulations on 18 September 1984 and purporting to set out the registration particulars as at 19 July 1984 in relation to the registration of Walters' Trading Co. stated that the sole proprietor was Mr. LEE Kam-man.

7. The learned magistrate was entitled to draw the inference that the Appellant on 15 August 1984 was privy to the arrangement for the sale of objectionable tapes and was, therefore, justified in holding that he was a party to the commission of the offence of publishing which subsequently occurred. There was accordingly sufficient evidence to support his conviction on that charge. But, in relation to the sale on 29 August 1984 there was no evidence to link him with that transaction. Although he said he was in charge when arranging the sale on 15 August he told the inspector on 29 August that he was merely a member of the staff. The two statements are not inconsistent; both are consistent with an employee status. The Appellant did not refer, as did the person seen on 20 July 1984, to the person who would actually do the selling as if he were his employee. The evidence was insufficient to prove beyond a reasonable doubt that the arrangement for buying tapes away from the premises on 29 August 1984 was done by or on behalf of the Appellant. There was, therefore, insufficient evidence to support his conviction on the charge which related to an offence of publishing on 29 August 1984.

8. The remaining conviction was for having for publication for gain at the premises on 29 August 1984 four video tapes containing matter of an obscene nature.

9. The objectionable articles were found in drawers of a desk or desks on the premises when the police executed the search warrant on 29 August 1984. There was no evidence that the Appellant had exclusive control over the premises or over the particular desk or desks in which they were found and he was not the only person on the premises at the time the search was conducted. There was, therefore, insufficient evidence to find as a fact proved beyond reasonable doubt that he had those tapes for publication for gain.

10. The appeal against his conviction for publishing an objectionable article on 29 August 1984 (charge (C)) and for having for publication for gain objectionable articles (charge (D)) is allowed but his appeal against the other conviction is dismissed.

(1) [1973] A.C. 865, 900.