The Queen v. Man Cham Boo

HCMA000851/1986

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HEADNOTE

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Defence Counsel not invited to address Magistrate-

Written judgment delivered - justice not seen to be done-

sense of grievance - conviction quashed

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 851 of 1986

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Dates of hearing: 28th August, 1986 and 17th October, 1986

Date of delivery of judgment: 17th October, 1986

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JUDGMENT

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1. The appellant was convicted of having objectionable articles for publication for gain, contrary to section 4(1)(b) of the Objectionable Publications Ordinance, Cap. 150.

2. The prosecution case was admitted in toto under section 65C of the Criminal Procedure Ordinance. It was admitted by the defence that 45 out of 139 video tapes found in the defendant's flat were objectionable. It was further admitted that there was more than one copy in respect of eleven different "types", which presumably means performances.

3. The prosecution relied on section 5 of the ordinance, which states:-

"If in proceedings against a person for an offence under section 4(1)(b), it is proved that such person had two or more identical objectionable articles in his ownership, possession or control, he shall be presumed until the contrary is proved, to have had such articles for the purpose of publication for gain."

4. The appellant made a cautioned statement to the police in which he said he had copied some of the pornographic tapes for a relative in Australia. He admitted that there were four video recorders in the flat, one of which (Beta) was broken and that, during the past seven years, the others had "been out of order one after the other".

5. He told the police that he lived at that address with seven members of his family and that his occupation was speculation in shares, though formerly he had been a magazine wholesaler.

6. In his evidence the appellant confirmed that eleven performances were duplicated; there were three copies of some and two of others. This was because he had copied tapes for his two brothers-in-law in Australia, who had complained about the quality of television programmes in that country. He had intended to copy ten films and send a copy of each to Australia.

7. When he had copied eight films, he was stopped by his wife, who told him it would look bad if his nieces and nephews discovered the contents of the parcels. So he stopped copying the tapes. This was why four or five of these tapes had been used to record other films.

8. At the time of the raid there were three television sets and four video recorders in the flat. One of the latter is a Sony Beta model and has not worked for three or four years. The appellant still hopes it may be repaired, but he has done nothing about it and, since its demise, he has not been able to watch any of the Beta tapes.

9. The second video is a Blauplunkt, bought five or six years ago by the appellant's son, and still in good condition.

10. The appellant bought the third machine, an Orion, at Chinese New Year this year, because the Blauplunkt's switch was defective. This does not make much sense, since the Blauplunkt is apparently all right now.

11. The fourth set was bought secondhand by the appellant's son last year, but it is not working well.  We do not know why he bought it.

12. There are two grounds of appeal, neither of which concerns the evidence in the case. The first is that the magistrate denied defence counsel the opportunity to make a closing address. The second ground is related: that the magistrate had prepared a written judgment before defence counsel had an opportunity to make a closing speech.

13. The magistrate's record shows that at 11.45 a.m., at the end of the re-examination of the appellant, the court adjourned. It resumed at noon. There then appears the entry, "Owen - Case for defence". Then follows a judgment that fills more than a page of typescript.

14. In her Statement of Findings, the magistrate says:-

"The record of proceedings speaks for itself. Although the record does not show that I invited the defence counsel to make any closing submission, equally, there is nothing to show that I had denied him an opportunity to do so. And as far as I can recollect, it was certainly not a case where I stopped the defence counsel when he intimated that he wished to address me."

15. The defence solicitor, who also appears in the appeal, has made an affidavit in which he does not challenge the record, or what the magistrate says. However he says he remained standing after the magistrate returned to court in order to make his speech. The magistrate took no notice and began to read out her judgment.

16. This affidavit is contradicted by that of the prosecutor, Mr. Luk Wai-hung, who says the magistrate invited submissions from both prosecution and defence before giving judgment. He alleged Mr. Owen smiled and said no.

17. Mr. Owen has filed a further affidavit in which he says he saw Mr. Luk writing the initials N. G. on the charge sheet during the reading of the judgment. When it became clear that the verdict was guilty, he amended what he had written accordingly.

18. Mr. Owen submits that the significance of this is that, in the magistrate's court, it is customary to invite defence counsel to make a speech, unless the magistrate has already made up his mind to acquit. The fact that Mr. Luk was expecting an acquittal is evidence, Mr. Owen suggests, that he was not invited to address the court.

19. The appeal hearing has been adjourned in order to give the magistrate an opportunity to comment. Unfortunately she says that, due to lapse of time, she has no recollection of the case.

20. Mr. Luk has filed a supplemental affidavit, in which he gives a different version of what he wrote on the charge sheet, but he concedes that he was expecting a not guilty verdict and had minuted this during the break. Since the magistrate is unable to throw any light on what took place, I can only rely on the record. It is not so inherently improbable that I should not accept it. Furthermore, since the affidavits of Mr. Owen and Mr. Luk cancel each other out, so to speak, it is proper, this being a criminal appeal, that I accept the appellant's version.

21. On the record and the other evidence before me, therefore, there must be a possibility that the magistrate had made up her mind before hearing defence counsel.

22. On the basis that justice must be seen to be done, and to relieve any sense of grievance on the part of the appellant, as in R. v. Lai Chuk-ting⁽¹⁾, the appeal is allowed and the conviction quashed.

23. Having heard counsel on the matter, I order that the case be retried.

(1)    1978 H. K. L. R. 402

Representation:

Mr. Cross, Senior Assistant Crown Prosecutor, for the Respondent.

Mr. N. B. Owen, instructed by Messrs. Hampton, Winter & Glynn, for the Appellant.