Wang Sai Yu v. The Queen
Read the full judgment text of CACC 405/1973 on BabelCite. This Court of Appeal judgment.
1. The appellant faced three summonses issued upon informations alleging that he, being the proprietor, publisher and editor of a newspaper for distributing to the public, namely Kam Yeh Pao, did publish in the said newspaper specified matters of an obscene nature contrary to s.4 of the Indecent Exhibitions Ordinance, Cap. 150. That section reads:
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CACC000405/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 405 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 9th July 1973. ----------------- JUDGMENT ----------------- 1. The appellant faced three summonses issued upon informations alleging that he, being the proprietor, publisher and editor of a newspaper for distributing to the public, namely Kam Yeh Pao, did publish in the said newspaper specified matters of an obscene nature contrary to s.4 of the Indecent Exhibitions Ordinance, Cap. 150. That section reads:
2. It is to be observed that whereas the section covers matter indecent, obscene, revolting or offensive, the summonses alleged publication of matter of an "obscene" nature. In the court below, Crown counsel adopted the attitude that the word "obscene" constituted the most serious of the adjectives used in the section to describe the matter, publication of which was forbidden under the section, and it is on that basis that the trial proceeded, although Crown counsel submitted to the learned magistrate that if the court were to find the articles merely indecent or offensive then there would be an obligation on the part of the court to amend the summonses accordingly. In the result the learned magistrate did not find the three articles complained of obscene, but did find them offensive and convicted the appellant upon that basis, fining him $5,000 upon the first summons and $1,500 upon each of the second and third. 3. Mr. Gunston, for the appellant, has put forward some six grounds of appeal against conviction, including the suggestion that there was no evidence or no sufficient evidence that the newspaper in question was at the relevant date a newspaper "for distributing to the public" or published to the public by a publisher. I mention this ground of appeal only to emphasise that in prosecutions of this type it is desirable that evidence be given of the purchase of the allegedly offensive newspaper by some witness. In the present case this was not done. The copies of the newspaper produced were copies which had been filed with the Registrar of Newspapers pursuant to s.17 of the Control of Publications Consolidation Ordinance, Cap. 268 and it was this procedure which opened the way to this entirely artificial argument. I say "artificial" because nobody seriously doubts that the newspaper was in fact published upon the dates in question and that it could have been bought in the streets. But artificial or not it is a point which the defence were entirely justified in taking since it was for the prosecution to prove all the necessary ingredients of the offence beyond reasonable doubt. For reasons which will become apparent, it is unnecessary for me to come to any decision upon this point and I refrain from so doing, merely observing that if in future cases a purchaser of the newspaper in question gives evidence of the purchase, this artificial, although legitimate, argument will not arise. 4. A further ground of appeal was that:
5. This ground is based upon s.27 of the Magistrates Ordinance, Cap. 227, which reads as follows:
6. In the present case the learned magistrate did not physically amend the summonses to refer to offensiveness rather than obscenity but made such an amendment only notionally and in the course of his judgment saying that
7. Mr. Gunston complained that in adopting this course the learned magistrate failed to comply with the requirements of sub-ss. (2), (3) and (4) of s.27 of the Magistrates Ordinance so that the amendment was not read and explained to the defendant who was given no opportunity to recall witnesses or to call any further witness, and no opportunity to apply for any adjournment which might reasonably have been necessary to enable him to call further witnesses. To this argument Mr. Carolan, for the Crown, submitted that his colleague from the Crown Law Office prosecuting in the court below, had been over meticulous in submitting to the learned magistrate that if he found the articles not obscene, but only indecent or offensive it would be incumbent upon him to amend the charge. Section 4 of the Indecent Exhibitions Ordinance, counsel pointed out, referred to matter of an "indecent, obscene, revolting or offensive nature" and this was a case in which the greater included the lesser. With respect to counsel, it seems to me that this argument misses the point that the learned magistrate did not find that the material, the subject of the summonses, fell within the "greater" description of "obscene" so that no question of the greater including the lesser can arise. Nor was I persuaded by Mr. Carolan's analogy with a conviction for careless driving where the evidence has failed to prove dangerous driving, for in that case there is statutory authority for the substitution of that particular lesser offence for the greater and that position is perfectly clear to the defence from the outset. In the present case it was never made clear to the defence, until in the course of the judgment when it was too late, that any variation of the charge was contemplated. As it seems to me the appellant and his solicitor were perfectly entitled, at the end of the prosecution case, to say to themselves "Well, that certainly does not prove obscenity and there is no need for the appellant to go into the witness-box". 8. Had it been made clear that the charge was to be varied the appellant might well have considered that whilst the prosecution evidence had failed to show obscenity it might well have shown a prima facie case of offensiveness and in those circumstances it may be that the appellant, who had not given evidence, would have wished to do so or would have wished to recall prosecution witnesses for further cross-examination or to call further witnesses himself, and for these purposes he might have sought an adjournment. He was deprived of all these opportunities and, whilst had he been given them they might not have availed him, that is not a conclusion which can properly be drawn. The appellant was deprived of opportunities of defence to which he had a statutory right under s.27 of the Magistrates Ordinance and in those circumstances the conviction cannot stand. 9. The appeal succeeds upon this single ground and it is unnecessary for me to consider further the remaining grounds of appeal. The appeal is allowed and the fines, if already paid, must be returned to the appellant. Representation: Gunston of Gunston & Chow for the appellant Carolan, C.C., for Respondent. |