Lai Chun-wa @ Lai Wa and Others v. The Queen
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CACC000687/1973 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 687 OF 1973 -----------------
----------------- Coram: Li, J. Date of Judgment: 6th November, 1973. ----------------- JUDGMENT ----------------- 1. In this appeal the three appellants were convicted of two charges. The first charge is that they, on the 25th of June, 1973, in the New Era Film Society Limited at No.35, Mongkok Road, 3rd floor, Kowloon, in this Colony, exposed to the public view a cinematograph display which was of an indecent nature. The second charge is that the appellants, on the 25th day of June, 1973, at the New Era Film Society Limited at No.35, Kongkok Road, 3rd floor, Kowloon, did carry on a cinematograph display to which the public were invited without a permit in writing from the Commissioner of Police. 2. The evidence in support of these two convictions are straightforward. It falls on some usual pattern. On the 25th of June this year, two police officers, obviously acting on information, went to 35 Mongkok Road, 3rd floor, Kowloon, where they saw the third appellant behind the counter. They were asked whether they wanted to see a film and it would cost them $15. Each of the police officers gave the $15 and each of them was given a register to sign, a blue card and one ticket. Having gone through this procedure, they were ushered into another room where there were some other persons sitting around watching a film which was on show. The film was subsequently seized at a pre-arranged timing by a police raiding party. There is evidence that the first appellant was the director and/or manager of the New Era Film Society Limited, the second appellant was the operator and the third appellant the cashier in the premises. This evidence had not been denied. Accordingly, the appellants were convicted of the two charges. 3. At the trial, it was strenuously argued that the film that was shown in the premises was not an indecent or obscene film. It was further argued that, because the two police officers had to pay a membership fee and sign a members register before they were admitted to the show, they were not members of the public and therefore both of the charges were unfounded and there was no evidence to support such conviction. 4. Learned counsel for the appellant advanced three particular grounds of appeal: the first is that the learned magistrate erred in finding that the appellant or anyone of them exposed the film in question to public view; the second ground is that the learned magistrate erred in finding that the film in question was of an indecent nature; and, thirdly, that the learned magistrate erred in finding that the appellants carried on the cinematograph display to which the public were invited without a permit in writing in that there was no evidence or no sufficient evidence to show that the public were invited as stated in the charge or at all. 5. In the course of the appeal, learned counsel for the appellants informed this court that he would abandon the second ground of appeal, namely, to query that the film in question was of an indecent nature. Thus I do not have to consider that ground of appeal. However, learned counsel for the appellant strenuously argues that there was no exposure of the film to a public view. This leads me to read the provisions of section 3 of the Indecent Exhibitions Ordinance. That is the relevant section under which the appellants were charged in respect of the first charge. Section 3 provides that:
There is no question that the film which was exposed on that occasion was at least of an indecent nature. 6. Learned counsel relies on the first ground of appeal that in as much as these two officers admitted to the show were members of a club, it is not right to say that such show was exposed to public view. 7. I do not think it is necessary to deal categorically with counsel's argument that the interpretation of the Indecent Exhibitions Ordinance must be viewed in the same light as the interpretation of some other section concerning public decency that is contained in the Vagrancy Acts of 1824 and 1838 in England. We have a Vagrancy Ordinance in Hong Kong. As far as I can see, the provisions in section 3 of the Indecent Exhibitions Ordinance is not exactly in pari materia with the Vagrancy Acts in England. Every case must be judged on its own merit. 8. In his findings of fact the learned magistrate has this to say when he was dealing with the A Charge. He said:
In coming to this conclusion of course he considered the evidence in support of both charges. Earlier on at page 14 of the transcript in his findings, the learned magistrate said this:
He went on to say that:
9. Having regard to his findings, I observe and have come to the conclusion that what was in the learned magistrate's mind was this: here are two persons who were obviously members of the public, they arrived at certain premises where the first thing they were asked were whether they wanted to see a film show, the next thing which was said was that it would cost them $15, the $15 was subsequently segregated as to $10 for admission fee and $5 for membership fee, and membership of what? - to a company which purports to be incorporated on that very day when the film was shown and when they were admitted, even the articles of association were dated the same day. It was supposed to be a proprietary club, a club owned by a limited company and that limited company had not even produced a certificate of incorporation. Not that it is vital in support of the conviction, but it goes to show how sincere and how truly these appellants believe in their own case. Members of the public were admitted without any query provided they are willing to pay, and all they were asked was to do that additional act of signing a membership register, without having been screened. They were to be admitted as members. Although the articles of association was produced in the court below, the articles of association was never produced before the appeal court. 10. Having such evidence, and having regard to the circumstances under which the two police officers were admitted into this show, I am of the opinion that the learned magistrate had ample evidence and was fully justified in coming to this conclusion when he said that:
In other words, any member of the public, provided that they so desired and were prepared and willing to pay, would be admitted to this show. The requirement of them or any of them to sign a membership register was simply to create a colourful impression - a vain attempt - to evade the law such as to provide an argument. 11. In the circumstances, I find that the learned magistrate is quite correct in his decision. The appeal against the first charge must be dismissed. 12. I come now to the second charge. Counsel for the appellants further refers to the distinctions in the provision of section 5 and section 8 of the Places of Public Entertainment Ordinance. Section 8, I may observe, is the section under which the appellants were charged. In sub-section 1 of that section it is provided that:
Here again, the learned magistrate has considered the provisions of section 5 of the Ordinance so as to construe that Ordinance in the spirit as well as the letter of the law. He found that under the circumstances the appellants were indeed presenting or carrying on a public entertainment without a permit. He has given his reasons in his statement of findings and I shall not repeat them. All I wish to say is that he is justified in coming to this conclusion that there had been carrying on a public entertainment. The fact that these two police officers were requested to sign a membership register does not alter the issue. Accordingly, the appeal against conviction in respect of the second charge is also dismissed. 13. That would be sufficient to dispose of the matter. Even if it can be argued that the learned magistrate had gone on to a wrong line of reasoning in his statement of findings, which I do not say that he had, but even if that can be argued, I find that the Magistrates' Ordinance gives me sufficient power to view the case as a whole and adjudicate in the same way as if I have the same power of the learned magistrate. Paragraph (d) of section 119 of the Magistrates' Ordinance provides this:
It goes on in paragraph (e) to provide:
Having regard to the provisions of paragraph (d), and to the evidence as stated in the case, I find that this is just a vain attempt to by-pass the provisions of the law. I fail to subscribe to the learned counsel's argument. I accept Mr. Duckett's argument in that the whole affair means no more and no less than offering to the public a show of an indecent film and so-called entertainment. 14. For these reasons, again I would say that the appeal on both charges must be dismissed and with costs.
Representation: Mr. Ducket for the Crown. Mr. R. Tang (Peter Mo & Co.) for the appellants. |