HKSAR v. CHOW SAI MAU

HCMA246/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 246 OF 2002

(On appeal from NKCC No. 6914 of 2001 )

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J U D G M E N T

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1. On 20 February this year, this appellant (the 3rd defendant) was convicted after trial by Mr Tsang at the North Kowloon Magistrates' Court on three charges of being in possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390, and sentenced to concurrent terms of 12 months' imprisonment. He now appeals against those convictions.

2. The facts which were substantially agreed can be stated shortly. On 30 May last year, a man called Chan Ka Chun ("Chan") who is a freelance driver was asked by the 1st defendant to go to the airport to collect a consignment which had arrived by air from Kuala Lumpur for which he was to be paid $300.

3. At the airport, Chan was stopped by customs officers who wished to know what he was going to collect. He presented them with the airway bill which purported to show that he was going to collect a consignment of computer accessories. The officers obtained the release of the six cartons which were the subject of the airway bill and discovered that in fact they contained 5,919 pornographic DVDs, which is of course a substantial commercial quantity. Chan was arrested and he said that he would help the officers to detain the person who had asked him to run this errand.

4. From the airport, the officers, Chan and the cartons containing the DVDs travelled to Mongkok, arriving there at about 9:30 p.m. Chan telephoned the 1st defendant, and he was asked to deliver the consignment to an address at Hak Po Street, Mongkok. Once they got there, the 1st and 2nd defendants appeared bringing with them a metal handcart. The 2nd defendant who had the cart went to the van. He paid Chan his transport charge and started to unload the cartons. At that moment, he was arrested, as was the 1st defendant who was standing nearby. Shortly after that, the appellant who was walking in the immediate vicinity was also arrested. All three were put on board a customs' van to be taken back to customs headquarters for questioning.

5. When the vehicle arrived at its destination, the appellant was seen to remove a plastic bag from a bag that he was carrying, and surreptitiously drop the plastic bag onto the floor of the vehicle. This was seen by one of the officers. From the plastic bag he removed a key ring with 29 keys attached to it.

6. The next day, the appellant was taken to the 1st floor of the Ho King Commercial Centre, Mongkok for further enquiries to be made together with the keys that he had dropped. The officers discovered that two of the keys opened Shop 4, two opened Shop 22, two opened Shop 23 and two opened Shop 51. Inside these premises, about 2,000 pornographic DVDs and VCDs were found. The appellant was the tenant of Shop 23 -- more of which presently.

7. On being arrested and charged with these offences, the appellant, as he was entitled to, made no reply. The 1st and 2nd defendants were charged with the offence in relation to the 5,919 DVDs brought from the airport by Chan. The appellant was charged alone with four offences relating to the articles found at the premises which had been opened with the keys that he had tried to drop unnoticed in the customs' vehicle.

8. At the trial, the 2nd defendant pleaded guilty and was sentenced to a term of imprisonment. The 1st defendant and the appellant pleaded not guilty. Both were convicted. The 1st defendant who gave evidence at the trial was disbelieved by the learned magistrate. The appellant elected not to give evidence nor to call any.

9. Part of the prosecution case against him was that he was the tenant of Shop 23 which had been opened with one of the keys which the appellant had tried to get rid of. The prosecution called the landlady to prove the tenancy. What the prosecution had not, and perhaps could not have anticipated was that she told the court that the appellant had telephoned her to say that since 28 May 2001 he had sublet this particular shop to the 2nd defendant.

10. Faced with this evidence, the magistrate quite rightly reasoned that he could not exclude the prospect that some other person had, since 28 May 2001 and before the appellant's arrest, put the offending items into those premises. Accordingly, he acquitted the appellant on that charge -- Amended Charge 2.

11. As to the other charges which the appellant faced (Amended Charge 3, Charges 4 and 5 relating to Shops 22, 51 and 4), the learned magistrate harboured no doubts about the appellant's guilt. The evidence against the appellant was essentially this : he had surreptitiously tried to rid himself of the keys to the premises where these obscene items were stored and that he appeared nervous when the officer who had seen him do this picked up the plastic bag containing the keys.

12. In the circumstances, possession of those keys which he had tried to get rid of whilst in the custody of the Customs and Excise cried out for an explanation by him as to why he had keys to those premises and why he had tried to get rid of them. As he had elected not to go into the witness box and provide an explanation, the magistrate felt constrained to conclude that the only possible reason for his possession of the keys and for his trying to get rid of them and for appearing nervous when the officer picked up the keys was because he knew that the obscene items were in those premises and that he was in possession of them which, having regard to their quantity, must have been there "for publication" as recited in the charges.

13. In arguing this appeal on his behalf, Mr Fu has made a number of criticisms of the magistrate's reasoning. Firstly, he submits that there is an illogicality or, put another way, an internal inconsistency in these verdicts, because having acquitted on the Amended Charge 2 which related to the only premises which the appellant was the tenant and which he had purported to sublet to the 2nd defendant, that then left over the other premises where there was simply no evidence as to who the tenant was. A fortiori, Mr Fu submits that the same doubts should have remained with the magistrate in respect of the items contained in those premises.

14. Mr Cheung, for the prosecution, submits that this is not the correct analysis. In respect of Shop 23, there was positive evidence from the landlady to the effect that, at the material date, 31 May 2001, the appellant did not have charge of the those premises. The 2nd defendant was the sub-tenant. This, submits Mr Cheung, explains the difference in the verdicts. I am certain that that Mr Cheung is right in that submission and that this must dispose of this ground of the appeal.

15. But the main issue on the appeal is whether the magistrate was correct in holding that the only and irresistible inference that could be drawn from the fact that the appellant had the keys to these premises, which he had tried to get rid of, and appeared nervous once they had been discovered, was because he knew that he had the crucial evidence linking him to these obscene articles and that he wished to get rid of that evidence, and had become nervous when that evidence had been found by the officer.

16. Mr Fu rightly submits that it was for the prosecution to prove beyond reasonable doubt that this was the only inference that could be drawn in all the circumstances. He has, for example, suggested that the appellant might have thrown the keys away in order to protect the other accused whom he knew had been arrested in respect of these matters.

17. As to appearing to be nervous, that matter, he submits, should not have been used as a factor pointing to the appellant's guilt. It is not surprising that he was nervous given his predicament when he had been arrested.

18. Mr Fu has also drawn attention to the fact that the magistrate has too readily dismissed or at best has given insufficient regard to the evidence of the 1st defendant in the trial which was to the effect that these keys in fact belonged to the 2nd defendant, and that a young man had been asked to give those keys to the appellant with a view to their being returned by the appellant to the 2nd defendant who was due to meet up with the appellant in order to pay him the rent in respect of the sub-lease to him of Shop 23.

19. Mr Fu complains that it simply is not good enough for the magistrate to say that he rejected the 1st defendant's evidence. He should have at least provided some reasons for having done so, particularly as in the appellant's case before him, this was evidence capable of providing an innocent explanation for his possession of the keys.

20. Mr Cheung submits that in such a case where the magistrate had correctly directed himself as to the fact that it was for the prosecution to prove its case, and that the appellant's election not to give evidence was given its proper place in the magistrate's chain of reasoning and where he had directed himself on the appellant's good character as required in R. v. Berrada, there is simply no reason to interfere with his verdict.

21. This case cried out for an explanation by the appellant for his possession of the keys and why he had tried to get rid of them. He chose not to come and give that explanation. He can now hardly complain that the magistrate, when faced with no other evidence to set against the prosecution evidence, was prepared to draw the inferences that he did.

22. Mr Cheung submits that the magistrate did no more than follow the situation envisaged by Lord Hoffman in HKSAR v. Li Defan & Another [2002] 1 HKLRD 527, at 540 G-H. Mr Cheung submits that in the circumstances the failure by the appellant at his trial to give any explanation on oath was capable of strengthening the inferences to be drawn from the prosecution case.

23. In my judgment, this was a case which, on any sensible view of the evidence, required an explanation by the appellant. By exercising his right not to give evidence, he ran the very considerable risk that the magistrate would draw the inferences that he did.

24. Mr Fu's "lawyerly" submissions as to why and how the court should have resolved the evidence consistent with a failure by the prosecution to prove guilt beyond reasonable doubt is simply to fly in the face of reason and logic. Once the appellant elected to exercise his right to remain silent, it was, in the circumstances, clearly open to the magistrate to draw these inferences which, in my judgment, were the only proper and irresistible inferences in the case. This evidence clearly showed, to the appropriate standard of proof, that the appellant was indeed in possession of the items that were the subject of the three charges on which he was convicted and having regard to their quantity that they were "for the purposes of publication".

25. Accordingly, this appeal must stand dismissed.