SECRETARY FOR JUSTICE v. HKDN LTD

CAAR 9/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION for review NO. 9 OF 2006

(On review from ESS 10789-90/2006 and ESS 14217/2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  This is an application, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, in which the Secretary for Justice (the applicant) applies for a review of the sentences imposed on the respondent by Mr Allan Wyeth, following the pleas of guilty entered on the respondent’s behalf at the Eastern Magistrates’ Court to three summonses alleging the publication of indecent articles on three separate days in February 2006.  In each instance, the summons alleged that: “the said article had no cover or packaging and did not bear a notice in the form as specified under section 24(1D) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390” (“the Ordinance”).

2.  Section 24 of the Ordinance, so far as it is relevant to these proceedings, provides:

“24.	Restriction on publishing indecent article
	(1)	A person shall not publish an indecent article-
		(a)	where-
			(i)	the article has no cover or packaging or the covers or packaging is not indecent, unless the article (together with its covers or packaging, if any) is sealed in a transparent wrapper;
		(b)	where the article is an article-
			(i)	described in paragraph (a)(i), unless the article bears; …
			… a notice which is in the form specified in subsection (1D) …
……
	(1D)	The notice referred to in subsection (1) shall be in the following form-
	‘WARNING:		THIS ARTICLE CONTAINS MATERIAL WHICH MAY OFFEND AND MAY NOT BE DISTRIBUTED, CIRCULATED, SOLD, HIRED, GIVEN, LENT, SHOWN, PLAYED OR PROJECTED TO A PERSON UNDER THE AGE OF 18 YEARS
	警告：		本物品內容可能令人反感；不可將本物品派發、傳閱、出售、出租、交給或出借予年齡未滿18歲的人士或將本物品向該等人士出示、播放或放映。’;

and the following shall apply in respect of the notice-

		(a)	the letters and characters constituting the notice shall occupy at least-
			(i)	(A)  20% of each cover of the article;
				(B)  20% of the packaging of the article if the article has no cover; or
				(C)  20% of a label affixed to the article and which occupies the whole article if the article has no cover or packaging; and
			(ii)	20% of each side of its completely opaque wrapper where the article (together with its covers or packaging, if any) is sealed in a completely opaque wrapper;
		(b)	the letters and characters referred to in paragraph (a) shall be of a colour which contrasts with the colour of the background upon which they are printed;
		(c)	the area within which the notice is displayed shall not contain anything other than the letters and characters constituting the notice.
……
	(2)	Subject to subsection (3), any person who contravenes subsection (1), whether or not he knows that the article is an indecent article, commits an offence and is liable to a fine of $400,000 and to imprisonment for 12 months on his first conviction, and to a  fine of $800,000 and to imprisonment for 12 months on a second or subsequent conviction.”

3.  The respondent, HKDN Limited (HKDN), formerly Hong Kong Daily News Limited, pleaded guilty on 24 May 2006, through its duly appointed representative at Eastern Magistrates’ Court, to two summonses (ESS 10789/2006 and ESS 10790/2006).  Having heard the brief facts and mitigation, the magistrate imposed a fine of $7,500 in respect of each summons.  HKDN again appeared before that court on 21 June 2006 when a plea of guilty to the 3^rd summons (ESS 14217/2006) was entered.  A fine of $5,000 was imposed on this occasion.

4.  Those proceedings in the Magistrates’ Court were followed by notices dated 6 June 2006 and 28 June 2006, respectively, whereby the applicant applied to the magistrate under section 104 of the Magistrates Ordinance, Cap. 227, for a review of the sentences he had imposed.  The magistrate granted this application and, on 26 August 2006, he made an upward review of the fines, increasing those on the first two summonses to $15,000 and on the 3^rd summons to $10,000 having accepted that his initial sentences had been manifestly inadequate.

The facts

5.  The Brief Facts outlined at the Magistrates’ Court in regard to summons ESS 10789/2006, so far as we need to refer them in these proceedings, were that in a newspaper which had been purchased by PW1 in Wanchai on 1 February 2006 for monitoring purposes:

“… it was observed that the said article did not bear the statutory warning notice.  After examination, a feature article entitled ‘大陸乜都有’ (‘you can have everything in the mainland’) of a size of about 10.5cm by 10.5cm published in page E3 of the said article was found to contain indecent material depicting two nude females standing in front of a group of men.  The shape of one of the woman’s breasts was clearly shown though scramble effect had been applied to the nipples.” (Review bundle p. 10)

6.  Similarly, with respect to summons ESS 10790/2006, the respondent’s newspaper for 10 February 2006 was observed to contain a feature article entitled:

“… ‘浴花喜迎拮日’ [translated at page 51 of the review bundle as: Sauna girls welcome your ‘entry’ on the Chinese Valentine’s Day] of a size of about 36cm by 28cm (half page) published in page E3 of the said article was found to contain indecent material depicting nude females in seductive posture.  Two of the nude females used their hands to barely cover their nipples.  Another female occupying about 20% of the article was also topless and her nipples were barely covered by scramble effect.  As such, the publisher of the said article contravened Section 24 of the Control of Obscene and Indecent Articles Ordinance, Cap. 390.” (Review bundle p. 11)

7.  The Brief Facts concerning the last summons, ESS 14217/2006, were that in the newspaper which had been purchased on 21 February 2006 for monitoring purposes, it was observed, again where there was no statutory warning notice, that:

“… a feature article entitled ‘動動腦筋-令男人欲仙欲死’ [translated at page 55 of the review bundle as: ‘Use Your Brain to Turn Men On’] published in page E3 of the said article was found to contain indecent material depicting nude females in seductive posture.  The females were topless and wearing only T-back underwear.  The shape of the breasts of a female is clearly shown.  The sizes of the two photos were about 23cm x 10cm and 18cm x 11cm respectively, occupying about 20% of the whole page.  As such, the publisher of the said article contravened Section 24 of the Control of Obscene and Indecent Articles Ordinance, Cap. 390.” (Review bundle p. 12)

8.  Mr Zervos SC, on the respondent’s behalf, argued that HKDN was in the same position as a “recidivist” having been convicted on no less than 47 previous occasions for the same offence leading to the imposition of fines ranging from $3,000 to $80,000.  In short, he submitted that fines at the level passed in the present proceedings would have no deterrent effect whatever.  Furthermore, following HKSAR v Chan Pui-chi [1999] 2 HKLRD 830, these were cases where enhanced sentences were called for as the constant repetition of such offences by HKDN had increased their gravity.

9.  Mr Zervos additionally pointed to the fact that it was clearly the intention of the legislature to provide adequate deterrence against the public display of indecent articles in view of the high profitability likely to be derived from the publication of such material and coupled with its potentially harmful effects.

10.  In 1995, the maximum penalty for this offence was increased on first conviction from $200,000 to $400,000 and to $800,000 for any subsequent conviction.  As such, it was, Mr Zervos submitted, the duty of the courts to reflect the legislative view in the sentences imposed for these offences.  In this regard, Mr Zervos pointed out that out of HKDN’s forty-seven previous convictions, HKDN had offended on some thirteen occasions since the legislative amendments in 1995.  With these considerations in mind, as well as a suggestion that the magistrate had given weight to two mitigating factors of no real weight, Mr Zervos submitted that the sentences were manifestly inadequate.

11.  It is not without significance, as Ms Po Wing Kay for the respondent submitted, that it has never before been suggested that the penalties being imposed by the courts for indecent material of the kind presently before us were manifestly inadequate.  Over ten years have elapsed since the amendments to the Ordinance and there has been no suggestion that the fines which the magistrate imposed were not in general conformity with the penalties which had hitherto been imposed for offences of this kind.

12.  Whilst it is perfectly true that the present penalties are far below the level of the maximum, we have borne in mind that the publication about which complaint is made in each of the summonses related specifically to certain pictures appearing in these editions of the HKDN.  When these are viewed in isolation, whilst they undeniably fell within the category of ‘indecent material’, they were, to repeat Mr Zervos’ own description of them at the review hearing before the magistrate:

“… not in the worst category ... it’s in the lower end of offending …” (Review bundle p. 23)

13.  This was an apt description of the pictures which, in themselves, would these days be unlikely to give rise to any serious complaint from the public.  On the other hand, the written material which accompanied these articles, about which no complaint was made in the facts describing these offences, was where, in our opinion, the gravamen of the offences lay.  If the prosecution had been principally aimed at the written words accompanying the pictures (rather than exclusively at the pictures), the sentence to be expected would no doubt have been far greater.

14.  Here, in editions of a daily newspaper readily available to all members of the public, were highly explicit articles, going well beyond mere titillation, describing the fantasies of sauna girls and a girl named ‘Apple’.  The text is written in the unmistakable style of a pornographic magazine and had, it goes almost without saying, no place whatsoever in a daily newspaper.

15.  The lesson to be learned from this case, therefore, is that the prosecution should be careful to direct its allegations at the real target of its complaint.  The Brief Facts made no reference at all to the written articles accompanying the pictures and, at the review of sentence in the lower court, the magistrate was left to observe:

“... accepting that the material falls under that definition [of indecency], it could be what I am calling [relatively] innocuous or it could be the most graphic depiction of bestiality, for example, just to take something that could hardly ever happen, but it’s remotely possible, …”  (Review bundle p.21)

When making an upward revision of the sentences, the magistrate remarked:

“Each of the examples of ‘indecent article’ was at the lower end of the scale for such articles.” (Review bundle p. 31)

16.  That review had almost solely concentrated, as these proceedings have also done, upon the increased gravity of HKDN’s offences in the light of its numerous previous convictions.  The magistrate obviously heeded the submissions made by Mr Zervos, who also appeared in those proceedings, when he doubled all the fines he had originally imposed.  Rightly, no attention, in view of the way the prosecution had presented its case, was paid to the articles accompanying the pictures.

17.  In all the circumstances, we have concluded, on the basis on which the prosecution has at all times proceeded, that the sentences imposed by the magistrate were appropriate and we decline to alter them.  The application, therefore, is dismissed, with costs to HKDN to be taxed if not agreed.