The Queen v. Lee Chee Cheung

HCMA001083/1986

BETWEEN

Coram: Roberts, C.J.

Date: 25 November 1986

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JUDGMENT

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1. LEE Chee-cheung ("D.1") appeals against his conviction after trial before a Magistrate of managing a public live performance of an indecent nature.

2. He was originally jointly charged with four other persons, who were said to have taken part in the indecent performance. D2 and D3 were discharged after the Crown had offered no evidence against them at the outset of the trial.

3. D4 and D5 pleaded guilty and were. fined $1,000 each after a plea in mitigation by Counsel who appeared also for D1.

4. After D4 and D5 had been sentenced, the trial of the charge against Dl continued.

5. The prosecution relied wholly on an agreed summary of facts, which was admitted under section 65C of the Criminal Procedure Ordinance.

6. This agreed summary was to the effect that, on the evening of the 8th of August 1986, a live performance conducted by D4 and D5 took place on the premises of the Po Sing Association.

7. It was not disputed that on the basis of the description of the live performance contained in the summary of facts, it was, so far as Hong Kong law is concerned, a public live performance of an indecent nature.

8. The crucial issue in the trial was the involvement of Dl in the live performance. He gave evidence that he was the manager of the Po Sing Association and that he was in charge of the premises on the evening in question. His defence was that he expected ordinary performances to be given on that evening by D4 and D5 and that he had given them no instructions, directly or indirectly, to perform in the indecent manner which was set out in the agreed statement of facts.

9. The Magistrate, having expressed preliminary views as to the evidence, to which 1 shall refer later, then convicted D1.

10. Mr. Hoo has advanced three principal arguments on behalf of D.1. His first ground is that the Magistrate had made up his mind as to Dl's credibility, and indeed as to his guilt, before the end of the evidence.

11. At the conclusion of the evidence of D1, his Counsel indicated that he proposed to call D4 and D5 to give evidence that another member of the staff had encouraged them to take part in an obscene performance which was outside their normal routine.

12. The Magistrate expressed himself in the following terms:

"At this stage if the Court was called upon to make a ruling it would be that the defendant was guilty.

(1)    At this stage the Court could not accept Dl as a creditable witness.

(2)    As Manager of the club and where he is quite blatantly in breach of the Association rules by admitting the public, the defendant has a duty to ensure that performance was not obscene.

(3)    Given the nature of the photographs on display at the entrance of the Association premises it would be rather difficult to accept at this stage of the proceedings if called upon to rule that the defendant thought normal dance routines were taking place."

13. No doubt the Magistrate was acting from the best of motives in seeking to give an indication to the defence of the way his mind was working, with a view perhaps to saving the time and expense which might be involved by calling witnesses who could have no effect on the result.

14. This is, however, a dangerous practice for a Magistrate to adopt and one that must be discouraged. The danger is that defendants are likely to feel, even if there is no justification for such a belief, that they have not had a fair trial, if a Magistrate expresses a view as to the worth of the defence before it is closed.

15. Following upon this expression of opinion by the Magistrate, the defence sought an adjournment, notwithstanding it, to enable D4 and D5 to be called to give evidence.

16. After the prosecutor expressed his reluctance to consent to an adjournment, the Magistrate refused the adjournment, partly because an interpreter was not available, but principally on the ground that the evidence of D4 and D5 would make no difference to the outcome.

17. As a matter of general principle, the question of whether or not to grant an adjournment lies within the discretion of the Court, and an appellate court is slow to interfere with the exercise of a discretion of that kind, so long as it has been exercised by the lower court on proper principles.

18. In this instance, I am obliged to conclude that the ground on which the Magistrate refused to grant an adjournment amounted to an improper exercise of his discretion.

19. There must be extremely strong reasons for a Magistrate to refuse an adjournment to the defence to enable witnesses to be called, especially if their evidence could, if believed, have had an influence on the Magistrate's assessment as the credibility of a defendant.

20. No doubt the Magistrate in reaching his decision that it would be a waste of time to call D4 and D5 was influenced by his view as to the law, which is set out in the following terms towards the end of his Statement of Findings:

"In terms of the legislation creating the offence it is not a defence for a manager present on the premises (albeit downstairs and not upstairs) to say 'I did not know what was going on upstairs.'

On the wording of the statute creating the offence the Prosecution need only prove that the defendant was the manager of the premises at the material time and that a public live performance of an indecent nature took place at that time. Once these two factors have been proved by the Prosecution in terms of the offence strict liability flows.

It was on this basis that I advised the Counsel for the Defendant that even if I accepted the evidence of the two performers that they had unbeknown to the defendant accepted payment to make their dance routine more erotic, such evidence could not operate as a defence."

21. Counsel for the Crown conceded, as I understood it, that the Magistrate's interpretation of the effect of section 12A of the Summary Offences Ordinance could not be sustained and that it is for the Crown to establish not only that a defendant was the manager of premises and that a live performance of a indecent nature was taking place in them, but also that the defendant knew that a live performance was to take place.

22. However, it was argued for the Crown, it was not necessary to establish that the defendant knew that a live performance of an indecent nature was taking place.

23. I asked Crown Counsel, what would be the position if the manager thought that a perfectly proper performance of an extract from a ballet was to take place and that the performers, unknown to him, had substituted for it an obscene performance. In those circumstances, he contended that the manager would properly be found guilty of the offence, though the manager's belief, if accepted by the Court, would have a substantial bearing on the penalty to be imposed.

24. Counsel for the Appellant, on the other hand, submitted that the Courts must be slow to derive from a penal statute an intention by the legislature to impose a form of strict liability on defendants. This, indeed, is a principle that is well accepted. He drew attention to the wording of section 12A which is:

"No person shall, whether for reward or not, take part in, provide or manage any public live performance of an indecent, obscene, erotic or offensive nature."

25. He contrasted this provision with other provisions dealing with various form of vice, in which it is an offence to manage premises in which the probibited activities occur.

26. In this instance, he says that the evidence which has been produced would fully justify a conviction for such an offence, in other words, for managing premises in which an obscene live performance took place, but argues that it is necessary for the prosecution to show knowledge on the part of Dl that a performance of an indecent nature was taking place.

27. I do not think that the Magistrate was right in his interpretation of the effect of section 12A. I do not accept that it is enough for the Crown merely to show that Dl was managing premises in which an indecent live performance had taken place. In my view, the wording of the section is such that the prosecution must establish that the defendant knew that a performance of an indecent nature, though not necessarily all the details of it, was going to take place.

28. No doubt in the great majority of prosecutions of this kind, the Crown would have little trouble in establishing that the circumstances were such that the manager must have known the type of performance that was taking place. Indeed, if he had directed himself in the manner which I find to have been the correct one, the Magistrate might very well have reached the conclusion in this case that D1 must have known that an indecent show was to be performed in the club on the evening in question.

29. But he did not approach the matter in that way and for this reason, and for the other unsatisfactory features of the trial to which I have referred, I must find that this conviction is unsafe and therefore allow the appeal and quash the conviction.

Representation:

Mr. Alan Hoo (Anthony Y.L. Au & Co.) for Appellant

Mr. A.A. Bruce, s.c.c. & Mr. Peter Ip, c.c. for Crown