Hon Tak-san v. The Queen
Read the full judgment text of CACC 355/1982 on BabelCite. This Court of Appeal judgment was delivered on 2 June 1982.
1. The appellant was convicted of publication of an objectionable article, contrary to section 4(1)(a) of Cap. 150. It was alleged that he published 2 advertisements by prostitutes in the Real Victory News, a publication apparently almost exclusively devoted to sex and horse-racing. The editor of the-newspaper was similarly charged , but was acquitted.
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CACC000355/1982
BETWEEN
Coram: Bewley, J. in Court Date: 2 June 1982 ___________ JUDGMENT ___________
1. The appellant was convicted of publication of an objectionable article, contrary to section 4(1)(a) of Cap. 150. It was alleged that he published 2 advertisements by prostitutes in the Real Victory News, a publication apparently almost exclusively devoted to sex and horse-racing. The editor of the-newspaper was similarly charged , but was acquitted. 2. The first question that arises on the appeal is whether there was publication within the meaning of S. 2(2) of the ordinance. Evidence was given by a newspaper wholesaler, who said he ordered from the appellant over 1,000 copies of the Real Victory News for 20th May, 1981, and distributed them to newspaper hawkers.
3. The learned magistrate found that, on the evidence of the wholesaler, he was entitled to draw the inference that the appellant had distributed the newspaper to the public and was, therefore, within the section. 4. Mr. Allman-Brown, for the appellant, makes the point that it is the hawkers, not the appellant, that distribute it to the public. The wholesaler might change his mind and decide not to pass the copies on to the hawkers. There would then be no distribution. 5. Counsel for the Crown submits that the fact that copies were made available to the wholesaler amounts to distribution, but argues that, even if this is not the case, the appellant is fairly and squarely within S.2(2)(c). That provides:
6. Mr. Allman-Brown says this would only be true if the court felt able to take a broad view of the subsection. He points out that the law is intended to protect the consumer and hawkers are not the consuming public. 7. When a publisher sells 1,000 copies of a newspaper to a wholesaler, I think it cannot be said that he is not offering it for sale to the public. What did he imagine the wholesaler intended to do with the newspapers? Such a transaction must amount to an offering for sale to the public, whether or not it amounts in itself to a sale. 8. The next matter concerns the link between the appellant and the publication itself. The former made a cautioned statement to the police on 27th July, in the course of which he was questioned about a publication called Chun Shing Pao. He said the publisher was Chun Yet Pao Co., Ltd. and that he was the person in charge with full authority. 9. At the close of the Crown case, the prosecution had led no evidence to connect the Real Victory News with the Chun Shing Pao and this lacuna formed one of the limbs of defence counsel's submission of no case. On the application of the Crown, the court allowed evidence to be called to establish that one of the meanings of 'Chun Shing' was 'Real Victory' and that 'Pao' means 'newspaper'. 10. Mr. Allman-Brown submits that such evidence is not admissible where it remedies a defect in the prosecution case, is probative rather than formal and has not arisen ex-improvise. He relied on certain passages in Archhold, 40th Edition, in support of his argument: see paragraphs 449, 585 and 586. 11. There is, however, a recent English decision, Matthews v. Morris(1), in which the Lord Chief Justice and Lloyd, j., sitting in the Queen's Bench Division, held that justices had a discretion to allow the prosecution to re-open the case, which was not limited to formal or technical matters, but included matters of substance. The evidence in that case was omitted by a simple mistake and there was no injustice to the defendant in allowing the prosecution case to be re-opened. 12. Such was the position here. I am satisfied that the magistrate properly exercised his discretion in allowing the prosecution to complete the chain of evidence linking publication to the appellant. 13. Further submissions followed and the magistrate then dismissed both charges. 14. The prosecution had originally been conducted by Crown Counsel, with the assistance of a prosecutor named Mrs. Wu. After the 1st prosecution witness had given evidence, Crown Counsel apparently left matters in the hands of Mrs. Wu. It is not clear from the record whether there was an adjournment after the dismissal of the charges, but it seems that Crown Counsel interposed at this stage and invited the court to review its decision, on the basis, inter alia, that it was an affront to common sense to say that there had been no publication. 15. The magistrate apparently agreed, because he reviewed his decision in respect of the appellant, although refusing to do so in the case of the other defendant. 16. Defence counsel's point here is that the power to review under S. 104 of the Magistrates Ordinance must be exercised judicially. He complains that, in the absence of any reasons, either at the time, or subsequently in the magistrate's statement of findings, there is a danger that this was not done.
17. Mr. Allman-Brown gave what I thought was an inappropriate example of a wrong exercise of the discretion, namely a change of mind by a magistrate, purely for the purpose of spiting a defendant who had irritated him. The court is entitled to assume that magistrates do not behave like that. It would have been more satisfactory if the magistrate had given a reason for his abrupt change of mind in respect of one of the defendants. However, the sub-section is so widely drawn that I am unable to say that he was not entitled to do what he did. 18. I come now to the 2 advertisements about which complaint is made. They are clearly invitations to visit the prostitute whose photograph appears with the text. There is no room for doubt on this score and it is not denied by the defence. 19. In the English translations, however, certain characters have been given an alternative meaning by the translator, which appears in brackets after the literal translation. e.g. "grass door (vulva) fresh and tender." 20. The person who made the translation was not called as a witness, but a court interpreter of long experience testified that, although the words in brackets do not appear in the originals, in his opinion the words could bear such a meaning in several instances.He does not say why, nor whether he has any personal experience of the alternative meaning. In one instance he disagreed with the translator's interpretation: he did not accept 'vagina' as a possible translation of 'harmonica'. 21. In coming to his conclusion that the advertisements were objectionable, the magistrate accepted that the words bore the meanings attributed to them by this witness. Was he entitled to do this? 22. It is perfectly obvious that the advertiser is using euphemistic expressions to disguise the message she seeks to get across. 'Big balls' in this context is meaningless, unless it can be interpreted, as the translator has done, with the approval of the court interpreter, as 'big breasts'. When the reader sees the characters that translate literally as 'y tight and new', he has to try to give the words some sensible meaning. The witness, putting himself in the same position, agrees that the expression could mean 'vulva'. He has not suggested that it could mean anything else in the context of a prostitute's efforts to describe her charms. 23. I am forced to the conclusion that, if these words are to have any meaning - and they would not have been inserted in the advertisement unless they had a meaning - it is the meaning attributed to them in the brackets. 24. That disposes of the appeal, since the main thrust of Mr. Allman-Brown's argument on the merits was that it is not objectionable, in this liberal age, that a prostitute should advertise her charms, provided she does not refer expressly to the intimate parts of her body. That is a question that remains to be resolved. 25. On the evidence before him, the magistrate was fully entitled to conclude that this was an objectionable publication. For these reasons the appeal is dismissed.
(1) (1981) C.L.R. 495 Representation: Mr. Allman-Brown (Hamption, Winter & Glynn) for appellant Mr. Duncan Kilgour, C.C., for respondent |