The Queen v. Lau Hak Shing

HCMA000448/1992

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 448/92

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BETWEEN

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Coram: Hon. Yang, CJ

Date of Hearing: 23 July 1992

Date of Judgment: 6 August 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. On the 27th April 1992, the applicant (hereinafter referred to as Lau) was convicted by Mr. Ernest S.Y. Lim at South Kowloon Magistrates' Court after trial of two offences under the Control of Obscene and Indecent Articles Ordinance, Cap. 390. He now seeks leave to appeal against those convictions. He does not apply for leave to appeal against his sentences.

2. The first offence of which Lau was convicted was possession of a Class III article for the purpose of publication, namely, 152 video cassette tapes (Exhibit P7) classified by the Obscene Articles Tribunal as a Class III article, contrary to s. 26(b) of the abovementioned ordinance.

3. The second offence was possession for the purpose of publication obscene articles, namely 154 video cassette tapes (Exhibit P8), contrary to s. 21(1)(b) of the same Ordinance.

4. The learned magistrate's understanding of the meaning of possession in this context is not the subject of any of the Grounds of Appeal.

5. Broadly, the evidence was as follows.

6. Some time in the afternoon of the 23rd July 1991 officers of the Customs and Excise Department arrived at premises known as Unit 3 at Man Wai Building, 3, Man Cheong Street, Kowloon (hereinafter referred to as "Unit 3"). These officers conducted a search of the premises in the presence of the only person inside, a man called Chan Hon-tim, and the offending articles specified in the charges were seized, i.e, a total of 306 video cassette tapes.

7. Unit 3 was operated as a workshop for the purpose of making reproduction of videocassette tapes from their master video.- tapes. A number of labels and posters (Exhibits P9, 10, and 11) relating to the video cassette tapes were also found on the premises.

8. There was evidence to show that, printed as producer on the video cassette tapes, labels and posters seized at Unit 3 were the name and address of Megagold Video Company of Shop 15G, ground floor of Appollo Arcade, 170 Castle Peak Road, Kowloon (hereinafter referred to as "Megagold Video"). A partner of this firm Lam Kwok-keung lodged a Tax Return on the 8th of April 1991 stating that it had ceased business on 22nd October 1990, but there was no notice lodged with the Business Names Registry of any cessation of business. The records of the Registry thus continued to show that that firm was still in business. The Crown on the other hand conceded that the firm was no longer a video centre for tapes in June 1991, but was selling leather goods.

9. Lau was also a partner of Megagold Video.

10. Chan Hon-tim began his evidence by saying that Lau was one of his bosses, though under cross-examination he said a man called Lee was his boss, and it was Lee who employed him and paid his wages. In re-examination, he said that he had not seen Lau at Unit 3 which was the workshop, but at the "office at Jordon Road, Room 402, 4th floor (51 Jordon Road) Lee Kiu Commercial Building". Room 402, he said, was "the office of making videos for karaoke".

11. Room 402 at Lee Kiu Commercial Building was Lau's business address under the title of Glory Video Production Company ("Glory"), of which he was the sole proprietor. By notice to the Inland Revenue Department, the business there ceased on 30th June 1989; though as late as 26th June 1991, it was still being used as an office when Customs officers conducted a search there. This address was also the address of Megagold Production Ltd. of which Lau was one of the five directors, earning $15,000 per month and also sharing profits.

12. At this same address were found 900 similar posters bearing the name and address of Megagold Video as producers, and also two of the three invoices issued by the printer of the labels and posters, made out to "Client: Megagold", though bearing dates in November 1990, after the alleged ceasing of business of Megagold Video on the 22nd October 1990.

13. The evidence thus far demonstrates more than a casual connection between Lau and Unit 3, Megagold Production Ltd., and Megagold Video. As the learned magistrate found in his Statement of Findings, Lau was "the common denominator for both Room 402 and Unit 3".

14. The crucial witness was however the person who printed the labels and posters. That printer was Fan Siu-sang trading under the title of Tenda. His evidence was that it was Lau who introduced him to Lee of Unit 3. Whilst he considered Lee to be his customer his invoices were addressed to "Megagold", and he delivered his designs or the labels to "Megagold", sometimes to Lee in the street. He did not think Lau had anything to do with the labels and posters, because "most communications were between Lee and I (sic.)". He felt that Lau only introduced Lee. On the progress of his designs he would contact "Megagold" because he could not contact Lee. If Lau was not available, he would leave his message with Lau's colleague. He made the prints in accordance with Lee's instructions. He delivered the labels and posters to "Megagold" at 15G, Appollo Arcade, Castle Peak Road, ground floor. When he referred to Megagold, then, he must have meant at least Megagold Video of that address.

15. On being asked why he, Fan Siu-sang, did not contact Lee, he said he did not have Lee's telephone number and he "considered it alright to deliver goods to Megagold for Lee". Under cross-examination he said his client was Lee and not Lau or Megagold, but the invoices were made out to Megagold because he did not know what company Lee belonged to and he delivered the goods to Megagold because he believed that Lau knew Lee. He also said of the three invoices he had issued, two were paid by the "staff of Megagold", and one was paid by Lee. In re-examination he said he would look to Lau for payment if Lee failed to pay him.He also said Lee refused to give him his contact number.

16. It is not disputed that the labels and posters in question were a description of the offending video cassette tapes (Exhibits P7 and 8), and those labels and posters (Exhibits P9, 10 and 11) were printed by Fan Siu-sang.

17. The learned magistrate in his Statement noted that Lau in his evidence merely denied all knowledge of any of the activities of Unit 3 or knowledge of the labels and posters.

18. There are eight grounds of appeal. These and the skeleton argument were elaborated upon at the hearing of the appeal. Essentially, the case for the appellant is that the circumstantial evidence was not strong enough to support a conviction. In response, the Crown argued that Fan Siu-sang's evidence established the nexus between Lau and Lee, and there was sufficient evidence to show that Lau was in control of all the activities.

19. The prosecution readily conceded at the trial there was only circumstantial evidence against Lau. Lau's counsel contended that there was no link between Lau the individual and any of the firms or companies concerned. The magistrate found that Lee was Lau's subordinate and Lau was the principal person who wanted the prints of the labels and posters made. Whether he was justified in saying that Lee was Lau's subordinate and that Lau was the principal person is perhaps open to question, but on the evidence he was certainly entitled to find Lau to be the common denominator and was fully aware of whatever was happening inside both those premises.

20. Most importantly there was evidence, admittedly circumstantial, showing, inter alia: (1) the offending video cassette tapes were found at Unit 3; (2) labels and posters bearing descriptions of those tapes were also found there; (3) the labels and posters show that Megagold Video was the producer of those tapes; (4) Unit 3 was the workshop whilst Megagold Video was the-office; (5) Lau was a partner of Megagold video, which, despite the notice of cessation of business, was on the records of the Business Names Registry as being still in business; (6) at Glory (of which Lau was the sole proprietor) and Megagold Production Ltd. (of which Lau was one of five directors) occupying the same address, were found 900 posters and three invoices issued by Fan Siu-sang the printer; (7) that address, namely Room 402 Lee Kiu Commercial Building, was still used as an office on 26th June 1991; (8) Fan Siu-sang delivered the labels and posters to Megagold Video; (9) he was in contact with Lau rather than Lee; (10) two invoices were made out to and paid for by "Megagold"; (11) he would look to Lau for payment if Lee did not pay; and (12) he did not know what company Lee belonged to.

21. In my judgment, the magistrate was correct in his finding that Lau was in control of the offending tapes and thus in possession of them. Whoever was in possession of the tapes was also in possession of the labels and posters and vice versa: Lau was in possession of all these articles.

22. The appeal is dismissed.

Representation:

Mr. Lavac for Crown/respondent

Mr. Kenneth K.M. Ho (Oswald Wong & Co.) for appellant