HKSAR v. TSUI KIM PO

HCMA472/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.472 OF 1999

(ON APPEAL FROM SPC 2541 OF 1999)

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J U D G M E N T

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1. The appellant was convicted of a charge of possession of obscene articles for the purpose of publication. No evidence was adduced at the trial and all the evidence, including that from the defence, was agreed on paper and placed before the trial Magistrate. The trial Magistrate convicted the appellant and patently relied on the presumption in s.32 of Cap.390. Section 32 is not the easiest section in the Laws of Hong Kong to try to read and understand. What it does say is a defendant shall be presumed to possess an article for publication if he possesses more than two articles of it in circumstances that give rise to a reasonable suspicion that he intends to publish it. However, this presumption can only be applied in the absence of evidence to the contrary. In this case there was evidence to the contrary in the form of things said by the appellant in the various interviews that he gave to the authorities.

2. The Magistrate in the Statement of Findings did summarise the defence case, but rather incompletely. There were a number of things raised by the appellant in his cautioned statements which the Magistrate never mentioned and resolved. Because of the order that I am about to make, it is obviously not in the interest of the matter that I should go into these matters in detail. In my judgment, in view of the trial Magistrate's apparent failure to consider the evidence to the contrary, the appeal has to be allowed. However, I am of the view that the interest of justice requires that there should be a retrial of this matter before another magistrate.

3. The appeal is allowed. A retrial is ordered before another magistrate. The appellant's bail is to continue on the same terms until his retrial.

4. In view of my order for a retrial, Mr Percy's application for costs is declined.