Monan Gulabrai Mirchandani and Others v. The Queen
Read the full judgment text of CACC 266/1977 on BabelCite. This Court of Appeal judgment.
1. A single judge directed that this appeal be argued before the Court of Appeal.
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CACC000266/1977
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----------------- Coram: Huggins and Pickering, JJ.A. and McMullin, J. Date of Judgment: 9th September 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. A single judge directed that this appeal be argued before the Court of Appeal. 2. Summonses against a limited company and charges against a director of the company and its manager were, by consent, tried together by the magistrate. Although there were five summonses and five charges, all under s.4(1)(b) of the Objectionable Publications Ordinance, the magistrate convicted on only two summonses and two charges. They related to the October issues of the magazines "Oui" and "Penthouse". As regards the company the offences alleged were having objectionable articles for publication for gain and as regards the officers of the company the offences alleged were consenting to or conniving at the said offences by the company. All appeal against convictions and sentence but this judgment is confined to the issues raised on the appeals against conviction. 3. On behalf of all the Appellants it is submitted that the learned magistrate applied the wrong test of objectionableness and that there was insufficient evidence that these magazines were objectionable. The finding that the company did have on the date charged 244 copies of "Oui" and 8 copies of "Penthouse" for publication for gain is not challenged. The learned magistrate held, contrary to the contention of the Crown, that he ought to apply the "Hicklin test". In Reg. v Hicklin (1868) L.R. 3 Q.B. 360 the justices found that a pamphlet was obscene, but on appeal the Recorder quashed their order for destruction on the ground that the pamphlet was not kept to be sold for profit or gain, nor for prejudicing good morals, but for the purpose of exposing what the respondent deemed to be the immorality of the confessional. The Court of Queen's Bench restored the order of the justices and held that the respondent must be taken to have intended the natural consequences of his act. In the course of his judgment Cockburn, C.J. pointed out that the Recorder must have adopted the finding that the pamphlet was obscene. However, arguendo he said at p.367:
and in his judgment at p.371 he said:
That, although not directly relevant to the issue there before the court, has since been applied as the true test and was in England incorporated into the Obscene Publications Act 1959. As Lord Wilberforce said in Reg. v Jordan 1976 3 W.L.R. 887, 891E:
Of the 1959 Act the same learned judge said in Director of Public Prosecutions v Whyte 1972 A.C. 849, 861F:
This change was emphasized by Viscount Dilhorne in Reg. v Jordan at p.894F, where he said:
The learned judge went on to say:
On the strength of this it is contended on behalf of the Crown that in Hong Kong it is not the law that objectionableness must be judged relatively to the persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter embodied in the article. Mr. Caird invites us rather to adopt the "dictionary test" and to hold that if the article would be considered by the community as a whole to be objectionable that is enough. We think that subject to what we shall say hereafter this is right and we respectfully endorse the view expressed by Hogan, C.J. in Attorney General v Yeung Kam-tsuen 1962 H.K.L.R. 663, 667 that
We accept that the words "indecent", "obscene" and "revolting" which appear in s.3(1)(a) are different degrees of the same idea, "namely, offending against the recognized standards of propriety": see Reg. v Stanley 1965 2 W.L.R. 917, 921G. 4. What we have said does not, of course, mean that the surrounding circumstances are irrelevant, because the community would itself have regard to them and might, for example, tolerate matter in a medical textbook which it would consider undesirable in a book for children or even in a novel intended for adult readers. This is what Lord Sands meant when he said in M'Gowan v Langmuir (1931) S.L.T. 94, 97 that there is always "an element of relativity". The learned magistrate found that the magazines complained of in the present case were most likely to be bought in the first instance by "tourists or those likely to have adopted their own moral standards" but that they were also "likely to fall into the hands of the general reading public". It may be questioned whether tourists are not members of the general reading public, but we do not think it necessary to enquire who in fact purchased these magazines: such evidence is not irrelevant but it is not essential. These magazines were on sale to the general public, the only attempt at limitation being that they were packed in plastic envelopes marked "For Adults Only". The magistrate saw them for himself and each "itself provides the best evidence of its own [objectionableness] or of the absence of such qualities": Reg. v Reiter 1954 2 Q.B. 16, 20, citing with approval the Lord Justice General in Galletly v Laird 1953 S.C. (J.) 16, 26. Reg. v Reiter also shows that the court is not concerned to compare the articles in question with others, and equally, we think, it is not concerned with standards set in other jurisdictions. The magistrate correctly stated that he was not to attempt to sit as an arbitrator of taste and that he was to consider each magazine as a whole, but he found himself driven to the conclusion that they were objectionable. We are unanimously of opinion that he came to the right conclusion, although we have applied a slightly different test. 5. If we had applied the "Hicklin test" the result would still have been the same, because we are not persuaded that the learned magistrate was wrong in deciding that the magazines would tend to a greater or lesser degree "to corrupt those, among the persons likely to see them, whose minds were open to such immoral influences". Even if we were bound to assume that all the magazines would fall into the hands of tourists and no others, we decline to assert that all tourists (even adult tourists) are already so immoral that they could not be corrupted by this sort of article. 6. Mr. Litton submitted that it was necessary for the Crown to prove that each of the Appellants was aware of the objectionable nature of the magazines before he could be convicted. In relation to the company he relied upon the words of s.4(1):
In particular Mr. Litton emphasized that although the words "whether or not he knows it is such an article" appear in paragraph (c) but not in paragraphs (a) and (b). On the contrary we think that this difference indicates the intention of the Legislature that the offence was one of strict liability: it would be strange if a person who, as an importer, might never have had an opportunity to inspect the article was to be held liable whilst those who, being in possession, had had an opportunity of inspection might escape by raising a doubt whether they had knowledge of the objectionable nature of the article. Even if we took a different view as to that, we are satisfied that the company, through its servants, did have "knowledge" of the objectionable nature of these magazines. Our reasons will appear as we now come to consider the further argument advanced on behalf of the officers of the company. 7. This argument was that although they consented to and connived at the possession by the company of the magazines for publication for gain they did not know that the contents were objectionable and therefore did not consent to or connive at the offence committed by the company. It is common ground that the officers could be convicted only by reliance upon s.84 of the Interpretation and General Clauses Ordinance, which is in these terms:
It is not contested that there are offences which are committed where the offender knowingly commits the actus reus although he does not know that his action is illegal and the first question is whether offences under s.4(1) of the Objectionable Publications Ordinance fall within that category. In our view they clearly do. Nevertheless it is contended that s.84 of the Interpretation and General Clauses Ordinance requires knowledge that the company is committing an offence. Reg. v Allison (1888) 59 L.T. 933 and Love (1955) 39 Cr. App. R. 30 were relied upon for the general proposition that at Common Law a director and a manager of a company cannot be held criminally liable for the printing of a libel where there is no evidence that they knew the contents of the paper or saw such contents either before or after it was printed. Those cases were further relied upon for showing that the officers did not have "control" of the magazines so as to bring them within s.2(3) of the Objectionable Publications Ordinance, but it is not suggested that they did have such control. The present case, therefore, turns upon the correct interpretation of s.84 of the Interpretation and General Clauses Ordinance and the argument for the officers is that the plain words of the section require knowledge that what is being done is an offence. The case for the Crown is that the magistrate was right when he held that their liability sprang, if at all, from their consent to or connivance in the management of the affairs of the company and from the duty of "anyone who publishes ... any article ... to inspect each issue or copy of it". Mr. Litton submits that there is a big difference between not knowing what the contents were and knowing what they were but thinking that they were not objectionable: he accepts that in the latter case the person charged would be liable but he says that it would be unjust to convict where the belief in his innocence is based upon a matter of fact rather than upon a matter of law. It is clear that the magistrate believed the officers, "against inferences pointing strongly the other way", when they said that neither knew what was actually inside the magazines. Actual knowledge is the first of the three degrees of knowledge referred to by Devlin, J., as he then was, in Roper v Taylor's Central Garages (Exeter) Ltd. 1951 2 T.L.R. 284, 288. The second degree is where a person shuts his eyes to an obvious means of knowledge, thus deliberately refraining from making enquiries the results of which he might not care to have. The third degree is "constructive knowledge", where a person does not in fact know but has the means of finding out if he uses reasonable diligence. "The case of shutting the eyes is actual knowledge in the eyes of the law; the case of merely neglecting to make enquiries is not knowledge at all - it comes within the legal conception of constructive knowledge, a conception which, generally speaking, has no place in the criminal law": Idem p.289. What we have to decide is whether the officers deliberately shut their eyes to an obvious means of knowledge. We think the learned magistrate stated the duty too highly when he placed the duty on the publisher of "any article" to inspect it, but there may be circumstances which give such strong grounds for suspicion that an article may be objectionable that a duty does arise to inspect it. It is apparent that the officers here were aware that these magazines were of a kind which were in danger of being regarded as objectionable, for they sought advice on behalf of the company before taking on the agency for distributing them. Those who sail very close to the wind run the risk of being taken aback. The fact that the magazines were placed in a cover marked "For Adults Only" was another factor which alerted them to the risk they were running. It is said that such a wide interpretation of s.84 is not justified and that it will lead to injustice when the offence committed by the company is not itself one of strict liability. Section 19 of the Interpretation and General Clauses Ordinance provides that every Ordinance
The "fairness" at which we must aim is not fairness in the result of the interpretation but fairness in the interpretation: see Union Motors Ltd. v Motor Spirits Licensing Authority 1964 N.Z.L.R. 146. In our view there is nothing unfair in holding that the words "connivance at the offence" of the company cover a case where the officer of the company has deliberately shut his eyes to an obvious means of knowledge. 8. For these reasons we are of opinion that the appeals against conviction must be dismissed. 9. We add this. It was submitted to us that the learned magistrate erred in refusing to order the prosecution to give particulars of those parts of the magazines which they alleged to be objectionable. We think he was right to refuse. Counsel for the Crown had very properly indicated a number of photographs and passages in the text to which he intended to draw the attention of the court, but he expressly stated that he was not confining himself to those photographs and passages. There are, indeed, parts of the magazines which have not been marked which we consider to be more objectionable than some of those which have been marked. It was for the magistrate to consider each magazine as a whole, and this he did. 9th September 1977. Representation: |