Lui Chang Soong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 13 February 1992
• Neutral Citation: [1992] SGHC 25
• Docket Number: Magistrate's Appeal No 37/91/01
• Date: 13 February 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: James Teo (Wong & Lim)
• Citation: [1992] SGHC 25
• Defendant Counsel: Palaniappan Sundararaj (Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Statutory offences,'Film',Construction of 'film',Appeal against fines,ss 2, 21(1)(a) & 29(1)(a) Films Act (Cap 107),Films Act,Criminal Law,Words and Phrases,Whether offence of possession of films to be based on number of videotapes,Possession of uncensored and obscene videotapes,ss 21(1)(a) & 29(1)(a) Films Act (Cap 107),Whether magistrate erred in imposing fine of $100 for each videotape

This is an appeal against sentence which required construing legislation. I allowed the appeal on the first charge and dismissed the appeal on the second charge. I now give my reasons.

The appellant pleaded guilty to two charges. He was convicted and fined the maximum of $20,000 on the first charge and $7,000 on the second charge.

The appellant was charged as follows:

First charge

You, Lui Chang Soong, m/59 years

NRIC no: 0340068-I

are charge that you on or about 24 April 1987, at about 9.45am, at Hotel Royal, Newton Road, Singapore, did have in your possession, 414 uncensored videotapes and you have thereby committed an offence punishable under s 21(1)(a) of the Films Act (Cap 107).

Second charge

You, Lui Chang Soong, m/59 years

NRIC no: 0340068-I

are charged that you on or about 24 April 1987, at about 9.45am, at Hotel Royal, Newton Road, Singapore, did have in your possession, 14 obscene videotapes and you have thereby committed an offence punishable under s 29(1)(a) of the Films Act (Cap 107).

The statement of facts was accepted without qualification. A written submission was tendered in mitigation where it was pleaded that the appellant, a divorcee, had a stroke on 16 October 1990 and was admitted to the Singapore General Hospital. He was discharged after eight days but attends the hospital as an outpatient.

The appellant lived by himself, felt lonely and then started working as a night-duty officer in a hotel. His only relaxation was watching television which he did, both when he was in the flat and when he was on all-night duty at the hotel. With the passage of time, the appellant developed a craze for Cantonese films. He obtained videotapes of films. The videotapes were seized by the officers of the Board of Film Censors on 24 April 1987, both from his flat and from the hotel.

When the raid was carried out at the hotel premises, the appellant took the officers to the store in the hotel and to a room on the ninth floor of the hotel where the uncensored videotapes of films and videotapes of obscene films were found. He promptly admitted to ownership of the videotapes. He then took the officers to his flat at Toa Payoh where further uncensored and obscene videotapes of films were found and seized. Ownership was again admitted.

The appellant was first charged with the possession of the films at his flat on 9 December 1987. He pleaded guilty and was fined $6,300 for the offence under s 21(1)(a) of the Films Act (Cap 107) (`the Act`) and $2,500 for the offence under s 29(1)(a) of the Act.

This appeal is in respect of the films that were seized at the hotel on the same day, but the accused was charged with the offences of possession on 5 February 1991. The appellant again pleaded guilty. He again admitted the facts without qualification.

Counsel, however, raised a question of law in the course of his mitigation. He contended that films must be submitted for censorship under s 14 of the Act and that after the submission of a film for the purpose of censorship, the Board may under s 15 of the Act:

(a) approve the film for exhibition without alteration or excision;

(b) prohibit the exhibition of the film; or

(c) approve the film for exhibition with such alterations or excisions as it may require.

When the film is approved, the Board issues `such certificate` as the Minister may direct approving the exhibition of the film. A certificate is issued for a film. Where therefore a film is recorded in a number of reels or videotapes, although certificates are issued for each reel or videotape, the offence of possession is of a film.

I do not have the benefit of the learned magistrate`s thoughts on the matter. The learned magistrate fined the appellant $100 per videotape on the first charge so that the appellant was fined the maximum $20,000 on the first charge and $500 per videotape on the second charge. The appellant was fined $7,000 on the second charge.

Appeal

On appeal, counsel argued that the sentence of $100 per tape was manifestly excessive because the learned magistrate had erred in his construction of the word `film` in s 21(1)(a) to mean `$100 for each such tape` instead of `$100 for each such film` and `$500 for each videotape` in s 29 instead of `$500 for each such film`.

The judgment of the court on the matter is:

... I imposed the minimum fine of $100 per uncensored tape as required under s 21(1) of the Act ... I imposed the minimum fine of $500 per obscene tape as required under s 29(1) of the Act ... as the fine in total for 414 uncensored tapes exceeded the maximum fine of $20,000, I imposed the maximum fine of $20,000 ... .

Sections 21(1) and 29(1) of the Films Act read as follows:

(21) (1) Any person who -

(a) has in his possession; or

(b) exhibits or distributes,

any film without a valid certificate approving the exhibition of the film shall be guilty of an offence and shall be liable on conviction -

(i) in respect of an offence under paragraph (a), to a fine of not less than $100 for each such film that he had in his possession (but not to exceed in the aggregate $20,000); and

(ii) in respect of an offence under paragraph (b), to a fine of not less than $100 for each such film that he had exhibited or distributed (but not to exceed in the aggregate $20,000) or to imprisonment for a term not exceeding six months or to both.

(29) (1) Any person who -

(a) has in his possession; or

(b) exhibits or distributes,

any obscene or lewd films shall be guilty of an offence and shall be liable on conviction -

(i) in respect of an offence under paragraph (a), to a fine of not less than $500 for each such film he had in his possession (but not to exceed in the aggregate $20,000) or to imprisonment for a term not exceeding six months or to both; and

(ii) in respect of an offence under paragraph (b), to a fine of not less than $1,000 for each such film he had exhibited or distributed (but not to exceed in the aggregate $40,000) or to imprisonment for a term not exceeding two years or to both.

The appellant submitted that an offence under s 21(1)(a) is committed by a person who has in his possession any film without a valid certificate approving the exhibition of the film. Where a certificate is issued under s 15(3), only one certificate is issued when the film is approved, even though the film is recorded in a number of videotapes or reels as in the case of a cinematograph film. The number of certificates issued for the videotapes will depend on the number of videotapes used to record the moving picture. The certificates issued for `Ben Hur` by the Board were produced to make the point:

Video Tape Certificate

Title: Ben Hur (1)

Sd

Cel Video (S) P/L

26.2.85

Owner:

Signed chairman

Board of Film Censors

Singapore

No 215300

Video Tape Certificate

Title: Ben Hur (2)

Sd

Cel Video (S) P/L

26.2.85

Owner:

Signed

Chairman

Board of Film Censors

Singapore

No 215301

Before reference is made to the definition of the word `film` in the Films Act 1981, it is useful to refer to the history of the legislation.

The word `film` is defined in s 2 of the Cinematograph Films Ordinance 1953, No 25 of 1953 as `a cinematograph film`; and s 24 provides: `There shall be charged for censoring any film such fees as may be prescribed.` The word `film` is defined in s 2 of the Cinematograph Films (Amendment) Act 1979 as including `any record, however made, of a sequence of...