THE QUEEN v. CHAN CHIU CHEUNG

______________

H E A D N O T E

______________

OBSCENE PUBLICATIONS - AGREEMENT TO SELL DOES NOT AMOUNT TO PUBLICATION - PHYSICAL PRESENCE OF ARTICLE NECESSARY SALE AND PUBLICATION TAKES PLACE WHEN ARTICLE HANDED OVER.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 228 OF 1989

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

J U D G M E N T

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

1. The appellant was convicted by Mr Edwards at North Kowloon Magistrates Court of publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390.

2. On the evening of 16th November 1988, DPC11417 entered the Tin Tin Video Club, 129-135 Castle Peak Road, 2nd floor, and asked the appellant what tapes were available for hire. The appellant said he had obscene tapes which were "genuine stuff". The DPC eventually agreed to buy a tape for $150. He gave the appellant $200 in marked notes and received $50 change. The appellant told him to sit down and someone would bring the tape.

3. The tape had not been delivered 30 minutes later After some argument the appellant told the DPC to follow him downstairs, where he would give him the tape. He took him to the Asia TV Game Centre, 117 Castle Peak Road, ground floor, where he told another man to give the DPC the tape. The tape was then handed over. It was subsequently found by the Obscene Articles Tribunal to be obscene.

4. The appeal rests on an admittedly narrow and technical ground, namely that "publication" took place in the Asia TV Game Centre and not in the Tin Tin Video Club, as stated in the charge.

Section 2(4) of the Ordinance provides:

"(4) For the purposes of this Ordinance, 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;"

5. Mr McCoy, for the appellant relies on section 3(3) and (r) of the Sale of Goods Ordinance, Cap. 26, which provides:-

"(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale but where the transfer of the-property in the goods is to take place, at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

6. It is submitted that the original agreement to supply the tape in the Tin Tin Club was subject to a novation to supply it elsewhere, and that it remained an agreement to sell until, the tape was handed over in the Asia TV. Game Centre, when the sale finally took place.

7. Mr Pang, for the Crown, argues that the word "sells" must include agrees to sell" if the intention of the ordinance is to be met.

8. On the other hand, the use of words such as "distributes", "circulates", "gives" and "lends" in the subsection seem to contemplate the physical presence of the article. If the seller promised to supply a tape when it was returned the following day, no sale would take place until then. If it was not returned, no sale would take place at all. I do not think it is the intention of the ordinance that such an agreement should be treated as a sale and publication, an offence punishable, incidentally, by a fine of $1,000,000 and imprisonment for three years.

9. Fai Mei Trading Co. Ltd. v. L.S. Lai Mag. App. 516/87 has established that section 119(1)(d) of the Magistrates Ordinance does not allow this court to amend the information and uphold the conviction, nor to convict of an attempt.

10. The appeal is allowed and the conviction quashed. I direct that the case be retried de novo on an amended information alleging publication at the Asia TV Game Centre.