HKSAR v. HO KIT LING

HCMA 288/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 288 OF 2003

(ON APPEAL FROM KCS 14211/2002)

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J U D G M E N T

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1. This is an appeal against a refusal by the magistrate to award this appellant costs following her acquittal at trial, where she was prosecuted for the possession for the purposes of publication of indecent articles in respect of which a requirement of section 24 of the Control of Obscene and Indecent Articles Ordinance was contravened.

2. It was said that the colour of the warning notice did not contrast with the colour of the background in respect of the wrapping on 86 video compact disks. The magistrate found that there was sufficient contrast. He examined all the disks. What he found, though, was that the wording on the warning did not comply with section 24, and he was of the view that the packaging on 84 of those 86 disks was itself indecent, and there was a requirement under section 24 that indecently packaged disks should be contained in opaque wrappers and they were not.

3. In other words, the prosecution came to court complaining about one thing; they got that wrong and the magistrate found that they did have a valid complaint about two other things. He pointed that out to the prosecution; however, for reasons best known to themselves, they declined to amend the summons and, accordingly, the magistrate dismissed it.

4. The appellant, who was then represented, asked for her costs and was refused them. The magistrate had a discretion and, as his reasons revealed, he knew the basis on which he had to exercise it. He was fully aware that costs usually follow the event unless there is a good reason for them not to. He found the fact that merely because the prosecution had gone about it wrong in circumstances where, if they had gone about it right, this appellant would have been convicted for breaching section 24 on two different bases, was a positive reason not to award costs, and I agree with him.

5. The appellant is unrepresented today but argues her case very nicely. The main point she makes is "I had no real chance to defend myself against the findings of the magistrate concerning the indecency of the wrapping or the failure to follow the correct wording in the warning". It seems to me that would be a good point if there was any prospect, even a remote one, that there was room to dispute the finding. But in respect of the failure to follow the correct wording of the Ordinance, there can have been no dispute. The magistrate had the words of the Ordinance in front of him; he had the words of the warning in front of him; he could compare them. It seems to me there could be no room for error.

6. Accordingly, the order I make today is to confirm the order that the magistrate made.