HKSAR v. YEUNG CHOR SHING

HCMA695/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.695 OF 2001

(ON APPEAL FROM ESCC 376 OF 2001)

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J U D G M E N T

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1. The appellant was charged with the offence of possession of obscene article for the purpose of publication. The particulars alleged that on a day between 28 August and 6 September 2000 in Hong Kong, the appellant possessed for the purpose of publication an obscene article, namely 3,830 numbers of obscene VCDs and 40 numbers of obscene DVDs. The appellant denied the offence and was convicted after trial. He was sentenced to 11 months of imprisonment. He now appeals against the conviction. The trial was conducted in Chinese, but as counsel had used English in the grounds and the skeleton, I shall use English in writing this judgment.

2. At the trial, the appellant had basically admitted the whole of the prosecution case. The agreed facts, prepared pursuant to section 65(c) of the Criminal Procedure Ordinance, was exhibited as P-68. The items seized were also produced to court by agreement. In effect, no prosecution witnesses were called and the defence also did not call any witness.

3. The learned magistrate had succinctly stated the prosecution case in the Statement of Findings. He pointed out that on 6 September 2000, the police had stopped a light goods vehicle JM3260 in Wanchai area. It was driven by someone surnamed Leung. Inside the vehicle, eight paper cartons were found, with three of them opened and five underseal. There were altogether 3,830 pieces of VCDs and 40 DVDs inside these boxes and they contained obscene material. After investigation, the police had identified a total of 24 fingerprints on the items seized and they proved to be the appellant's fingerprints. The appellant was then arrested. Under caution, the appellant said that he was employed by a Mr Chan to pack the discs. He had only worked for him for three days. The appellant had later taken the police to the shop for investigation but it was closed.

4. The appellant was legally represented at the trial. His counsel urged the court to accept the contents of the cautioned statement to be true and on that basis, he made a submission that, the appellant, in his capacity as a mere "packager", could not be held to be in possession of the obscene discs. He was only dealing with the discs as a custodian. However, the learned magistrate rejected the argument and also rejected the explanation given under caution by the appellant that he was a mere packaging worker. He found that the appellant knew about the obscene nature of the discs and had the right to control and deal with them. The learned magistrate found that possession was established in these circumstances. Furthermore, the magistrate found that under section 32(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390, the presumption of "publication" would apply. There was no evidence, either from the defence or the prosecution to rebut the presumption. In the end, the magistrate stated that he found the charge proved.

5. Mr Cheung, counsel for the appellant, now raised four main grounds in the perfected grounds of appeal, apart from the general ground of unsafe and unsatisfactory :

(1) that the learned magistrate appeared to have impose a burden on the appellant to prove that he was not in possession of the items, and the way the learned magistrate had assessed the appellant's account given under caution, gave the impression that the appellant had to prove his innocence;

(2) the magistrate made errors in the analysis of the evidence, particularly, in relation to the number and location of the appellant's finger/palm prints found on the seized items;

(3) the magistrate was not entitled to speculate on the manner of how the appellant would have held the discs in the process of packaging when there was no evidence to show how a disc should have been handled; and

(4) the magistrate erred in applying section 32(b) to exhibits 3, 4, 5 and 6 when each of them had only one copy.

6. Counsel's main complaint in his oral submission was centred on the issue of "possession". His argument was that by rejecting defence counsel's submission on the meaning of "possession", the learned magistrate appeared to have assumed that the appellant was therefore in possession of the items. The reference to the concept of possession in the Dangerous Drugs Ordinance during final submission might have contributed to the confusion. Counsel stated that there was a presumption of possession in the Dangerous Drugs Ordinance, whereas there was no similar presumption in the present case. The presumption, if applicable, would only arise on the issue of publication. Counsel said that the element of possession would still need to be proved by the prosecution although the magistrate had rejected defence counsel's submission.

7. In this connection, counsel relied mainly on the first part of the magistrate's brief oral reasons given after hearing the final submission. I shall quote the original judgment here :

"官：被告起立。你個會面紀錄嘅解釋有部分我唔信，最主要就係關於你只係一個包裝工人呢個角色。你係有舉證責任喺相對較可能嘅情況下解釋，呢個案件我亦都認為你呢個解釋，如果透過你-正如你嘅大律師講，透過你嗰個口供紙，其實我亦都可以睇到全單案件應該係所有-就算控方嘅情況，如果係能夠畀到你一個解釋嘅一個基礎，我亦都要考慮。不過，無論控方或者辯方所提出嘅證供，即係辯方嗰部分我已經拒絕咗，我認為你係履行唔到相對較可能嗰個舉證責任。

我認為控方已經舉證你係當時管有呢啲淫褻嘅VCD同埋DVD，當時亦都有個認識了解，知道呢啲係淫褻嘅VCD同埋DVD。呢一點控方已經舉證至毫無合理疑點嘅水平。

亦都有一個供發布用途呢一點嘅推定，根據法例第32條。亦都考慮過所有控方或者辯方嘅證供，睇下你有冇嘢作出呢方面嘅推定，其實就冇嘢能夠為你提供有力嘅-即係達致相對較可能水平嘅證明。

控方我認為整單案件已經喺毫無合理疑點嘅水平，舉證所有本案所需要嘅所有元素，我裁定你罪名成立。"

8. Counsel argued that this paragraph showed that the magistrate had made an error on the application of the onus and/or burden of proof. What the learned magistrate had said in the first paragraph was very unclear. Of course, one must read the oral judgment as a whole, as the respondent had correctly pointed out. I had taken time to read this carefully. I could understand paragraphs 2, 3 and 4 but I found it difficult to follow what the learned magistrate was referring to in the first paragraph. He seemed to be saying that if the appellant had provided some explanation then he must consider it because he had the burden to explain, on a balance of probabilities. But what was this burden? Counsel for the respondent tried to argue that the magistrate was really referring to the presumption under section 32. At the time of the hearing, I was attracted to this submission. But having read the judgment again, in all fairness, I found I could not accept this interpretation. If the magistrate was indeed referring to the presumption under section 32 in the first paragraph, then he would not have said later "亦都有一個供發布用途呢一點嘅推定 ...".

9. Indeed, the learned magistrate's Statement of Findings is very clear and apart from the mistakes on the fingerprints as pointed out by the appellant, I could find no fault in his approach and analysis. However, I could not ignore the oral judgment given immediately after the submissions as it touched on a fundamental principle of the onus and burden of proof. There was apparently a confusion somewhere either on the issue of possession or otherwise. But apart from this matter raised in connection with the oral judgment, I found that the other grounds of appeal unmeritorious. The mistake concerning the number of fingerprints was quite immaterial. Further, the magistrate was fully entitled to use his common sense to consider whether the mere "packager" defence was supported by the evidence, namely, the distribution and the location of the various fingerprints. Counsel also accepted now that his argument regarding section 32(a) was unarguable.

10. However, having considered all the submissions, I agree with the appellant that the oral judgment of the magistrate did disclose an error on the fundamental issue of the onus of proof. Despite the very suspicious circumstances as shown in the evidence, I have to find in favour of the appellant. This appeal is therefore allowed and the sentence is quashed.