Hon Tat Sang Alias Lo Chai v. The Queen
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CACC000670/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 670 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 20th November, 1974 ----------------- JUDGMENT ----------------- 1. Certain letters, which it had proved impossible to deliver, were opened in the Dead Letter Section of the General Post Office in an endeavour to trace the senders. As a result of the nature of their contents these letters were forwarded to the police. As a further result, the police began to take an interest in a certain Chinese newspaper. It being no part of the functions of Her Majesty's judges to give free advertisements to the purveyors of pornography, I will refrain from identifying the newspaper. 2. A detective sergeant, engaged upon anti-pornography duties, ordered twenty consecutive copies of the newspaper and cut a coupon from each, subsequently sending the coupons together with a stamped self-addressed envelope to the newspaper. He later received his self-addressed envelope back through the post and found that it contained one indecent photograph and four cards in the form of introductions to various "girlie" establishments, each card giving the number of a girl said to be employed at the named establishment and containing intimate details of the lady's person, accomplishments and techniques. 3. The sergeant then bought a second series of twenty issues of the newspaper and dealt with the coupons therefrom in the same way. On this occasion when his self-addressed envelope was returned it contained one indecent photograph. As a result the appellant, who is the editor of the newspaper concerned, was charged with two offences of sending by post an indecent picture contrary to s.32(1) (f) of the Post Office Ordinance (Cap. 98) and one offence of distributing matter of an indecent nature to the public, that is a quantity of photographs sent by post on request to various members of the public, contrary to s.4 of the Indecent Exhibitions Ordinance (Cap.150). After a trial he was convicted upon all three charges and sentenced to fines of $500 upon each of the charges under the Post Office Ordinance and to a fine of $1,000 upon the charge under the Indecent Exhibitions Ordinance. He appeals against conviction but at the hearing his counsel abandoned the appeal in respect of the two convictions under the Post Office Ordinance. 4. Dealing with the conviction under the Indecent Exhibitions Ordinance Mr. Bunting, for the appellant, argued that distribution entailed a physical handing out and that one could not distribute by post, a contention which I find to be without merit. More cogent was counsel's argument that there had not been shown to be a distribution to "various members of the public". In this connection it is important to recall that there was no evidence as to the identity of the sender or senders of the letters opened in the Dead Letter Office of the General Post Office and the conviction was arrived at upon the basis of the two self-addressed letters received by the detective sergeant. It was counsel's contention that the word "public" is a generic term which has no singular so that s.7 of the Interpretation Ordinance could not apply. In that same Ordinance the word "public" was expressed to include any class of the public but it was impossible, the argument went, to have a public of one or a class of the public consisting of only one person. 5. For the contrary view Mr. Carolan, for the Crown, said that the Court is entitled to look at the evidence as a whole; the appellant had admitted, in a cautioned statement, that he was responsible for the entire contents of the newspaper and for correspondence and the sending out of photographs and the learned magistrate was entitled to come to the decision by circumstantial evidence, entitled to infer from the facts as a whole that there was evidence of despatch to the public. Mr. Bunting, while conceding that there was evidence of acts preparatory to despatch to the public relied on the fact that the only actual evidence of distribution was the sending of two photographs on different occasions to the same individual. 6. It is to be observed that the particulars or the charge, as is right and proper, were very specific, those particulars were:
7. Whilst it is true that in his cautioned statement, the appellant admitted having sent out to readers of the newspaper photographs of a type which he described, and which can only be categorised as indecent, that admission was unaccompanied by any dates. As has been seen, however, the charge alleged distribution to "various members of the public" between certain dates was that of the sending, upon two separate occasions, to the detective sergeant, of and indecent photograph. There was thus no evidence of distribution to "various members of the public" so that the appeal in respect of the charge under the Indecent Exhibitions Ordinance must succeed. 8. That being the case it is unnecessary for me to deal with the further ground of appeal, that despite the terms of s.83 of Interpretation Ordinance which reads:-
the learned magistrate erred in law in convicting the appellant on the same facts as he had convicted him on the information under the Post Office Ordinance. 9. The appeal is allowed, the conviction on the charge under the Indecent Exhibitions Ordinance quashed and the fine of $1,000 under that charge, which has been paid, must be returned to the appellant. Representation: M.R.D. Bunting (Gunston & Chow) for appellant Carolan, C.C., for respondent. |