Mohd Ariffin bin Mohamad v Public Prosecutor

• Judge: Adam Nakhoda
• Judgment Date: 11 March 2001
• Neutral Citation: [2001] SGMC 10
• Citation: [2001] SGMC 10
• Published date: 19 September 2003
• Court: Magistrates' Court (Singapore)

JUDGMENT:

Grounds of Decision

THE CHARGES

1. The Appellant Mr. Mohd Ariffin bin Mohamad claimed trial to the following charges, marked P1A, P2 to P4 respectively;

MAC 7271/2000 (P1A)

You,

MOHD ARIFFIN BIN MOHAMAD, MALE/20YRS

NRIC NO: S8071243-Z

are charged that you on or about the 19^th day of October 2000 at about 7.10 p.m., at void deck of Blk. 201B Tampines Street 21, Singapore, did publicly exhibit 70 VCD inlays with obscene pictures, and you have thereby committed an offence punishable under Section 292(a) of the Penal Code, Chapter 224.

MAC 7960/2000 (P2)

You,

MOHD ARIFFIN BIN MOHAMAD, MALE/20YRS

NRIC NO: S8071243-Z

are charged that you on or about the 19^th day of October 2000 at about 7.10 p.m., at void deck of Blk 201B Tampines Street 21, Singapore, did carry on the business of distributing video compact discs containing films without a valid licence and you have thereby committed an offence under Section 6(1)(a) punishable under Section 6(2) of the Films Act, Chapter 107

MAC 7961/2000 (P3)

You,

MOHD ARIFFIN BIN MOHAMAD, MALE/20YRS

NRIC NO: S8071243-Z

are charged that you on or about the 19^th day of October 2000 at about 7.10 p.m., at void deck of Blk 201B Tampines Street 21, Singapore, did attempt to distribute, 340 video compact discs containing 170 films, without a valid certificate approving the exhibition of the said films, and you have thereby committed an offence under Section 21(1)(b) punishable under Section 21(1)(ii) of the Films Act, Chapter 107

MAC 7962/2000 (P4)

You,

MOHD ARIFFIN BIN MOHAMAD, MALE/20YRS

NRIC NO: S8071243-Z

are charged that you on or about the 19^th day of October 2000 at about 7.10 p.m., at void deck of Blk 201B Tampines Street 21, Singapore, did have in your possession for the purpose of distributing, 70 video compact discs containing 70 obscene films and having reasonable cause to believe the films to be obscene, you have thereby committed an offence under Section 29(3) punishable under Section 29(3)(a) of the Films Act, Chapter 107

2. After a one-day trial I found that the Prosecution had proven all the charges against the accused beyond a reasonable doubt and I accordingly convicted him of the offences. I subsequently sentenced the accused as follows, for MAC7271 of 2000 to one months imprisonment, MAC 7960 of 2000 to one months imprisonment, MAC 7961 of 2000 to two months imprisonment and MAC 7962 of 2000 to five months imprisonment. I ordered that the imprisonment terms for MAC 7961 and MAC 7962 would run consecutively and that the imprisonment terms for MAC 7271 and MAC 7960 should run concurrently with MAC 7962. Therefore, I sentenced the accused to a total of seven months imprisonment.

3. The accused is currently serving sentence.

FACTS NOT IN CONTENTION

4. There is no dispute that on the 19^th of October 2000 at about 7.10 p.m. the accused was at a makeshift stall which had displayed a number of VCDs containing either films or obscene films.

5. The Prosecution would concede that there was no observation of any conversation between the accused and any of the other persons who were at the stall and that there was no observation of any transaction in the form of an exchange of money for VCDs between the accused and any persons at the stall. The Defence does not deny that in answer to a question from one of the Prosecution witnesses the accused said that the price of the VCDs was "one for $10, if you buy three you get one free".

6. Apart from these few facts the rest of the facts revolve around whether the accuseds actions as observed by the two Prosecution witnesses indicate that he was manning the stall or whether they indicate that he was merely browsing. Some of the accuseds actions as related by the Prosecution and the inferences that are to be drawn from these actions are in contention.

THE PROSECUTION CASE

7. The evidence for the Prosecution comes from the eyewitness testimonies of Cpl. Timothy Oh (PW2) (hereinafter "Cpl. Oh") and Cpl. Tong Wee Han (PW3) (hereinafter "Cpl. Tong") and from the Board of Film Censors statement (P5).

A. Evidence of SSgt. Tap Pek Lau.

8. The statement of Mr. Kwoh Ah Tee, a censor from the Board of Film Censors, was admitted through SSgt Tap Pek Lau. The contents of the statement (P5) are that it was confirmed that from the VCDs seized on the 19^th of October 2000 there were 170 uncensored and uncertificated films, 70 obscene films and 70 obscene inlays. The Defence has not challenged the contents or findings presented in the statement.

B. Evidence of Cpl. Timothy Oh Lau Soon (PW2)

9. On the 19^th of October 2000 Cpl. Oh, Cpl. Tong and 4 other reservist officers were conducting anti-VCD operations in the Tampines Central vicinity. At about 7.10 p.m. they received a message about someone selling VCDs at Block 201. In response they were dispatched there. When they arrived at Block 201 they saw the Accused standing at a makeshift stall. The stall comprised of a foldable table with a door placed on top of it and a "Hello Kitty" tablecloth spread over the door. On the tablecloth there were VCDs displayed in rows.

10. Cpl. Oh says that the front of the stall was the walkway (hereinafter "the near side") and at the back portion of the stall (hereinafter "the far side") there was a wall with a flight of stairs leading up to the HDB apartments. Cpl. Oh says that the accused was standing at the far side of the makeshift stall with his back to the wall. He says that the VCDs on the door-top were all facing away from the rear wall and towards the walkway. Cpl. Oh says that from where the accused was standing the VCD titles would appear inverted to him.

11. Cpl. Oh says that when he began his observation he saw that there were already two customers standing on the near side of the stall, i.e. opposite the accused, and they were picking up VCD jackets and looking at them. He says that he saw the accused arranging the VCDs and his evidence is as follows, (at page 4E of the Notes of Evidence);

Q. Upon reaching Block 201, what did you see?

A. We saw the Accused arranging the VCD, at one end of the seller table and two other customers borrowing. I could differentiate between them because the customers were picking up the jackets and having a look at them whilst the Accused was not really looking at the VCDs but arranging it so that the titles could be seen.

Q. Who is the Accused person?

A. The person seated in the dock, he was arranging it so that the customers could view it.

(at page 6E of the Notes of Evidence);

Q. Show how Accused was seen arranging the VCDs?

A. He was going from left to right of the table arranging to ensure the titles could be seen. Because the customers would pick up a VCD and look at it then put it back down so he would arrange it again.

(Emphasis mine)

12. During his observation Cpl. Oh says he did not see any conversation between the accused and the customers and there was also no exchange of money observed between these persons. Cpl. Oh says that he and Cpl. Tong then approached the makeshift stall and Cpl. Oh says that Cpl. Tong asked the accused how much the VCDs cost. He says that the accused replied as follows, (at page 6A of the Notes of Evidence);

Q. When you and Cpl. Tong were at the table did then one of you engage in conversation with the Accused?

A. Cpl. Tong asked the Accused how much the VCDs cost. He replied one for $10, buy three get one free.

13. Having said this Cpl. Oh says that the accused walked to the other end of the table and at this point he and Cpl. Tong arrested the accused. Cpl. Oh says that the accused immediately denied selling the VCDs. Cpl. Oh in cross-examination said that having established to their satisfaction that the accused was indeed the seller they proceeded to arrest him. Cpl. Oh said that he felt there was no need to wait any longer, before arresting the accused, because he felt that they should not allow the accused to continue selling. Cpl. Oh said that the accused was searched and it was found that he had less than $10 on his person. Cpl. Oh said that the two customers whom they had observed earlier had walked away.

B. Evidence of Cpl. Tong Wee Han (PW3).

14. Cpl. Tong said that at about 7.10 p.m. on the 19^th of October 2000, he, Cpl. Oh and four reservist officers were patrolling the Tampines Central and Tampines Street 21 vicinity. They received a message from their operations room that there was a case of a person selling pornographic VCDs at Block 210D Tampines Street 21.

15. Cpl. Tong and the other officers proceeded to the location and he says that this is what he observed, (at page 15E of the Notes of Evidence),

Q. When you and your partner arrived what did you observe?

A. From far we saw a make shift stall with three persons surrounding it. Whilst approaching I saw a male Indian arranging the VCDs in a way that no on looker would do.

Q. You told the Court you observed three persons at the make shift stall with the Accused arranging?

A. Yes.

Q. What is the position of the other two subjects in relation to the Accused?

A. They were standing opposite to the Accused.

16. Cpl. Tong says that he observed that the accused was standing on one side of the table and moving up and down along this side. The customers were both standing on the side opposite the accused. He says that he did not observe any other person walking on the side that the accused was on. With regards to how the accused appeared to be arranging the VCDs Cpl. Oh said the following in cross-examination, (at page 20E of the Notes of Evidence);

Q. How did the Accused arrange the VCDs?

A. The VCDs on the table were arranged in neat rows and the Accused arranged it nicely as it is on the table.

Q. When you first observed the Accused were the VCDs arranged in neat rows?

A. From my point of view it is.

Q. Do you know why the Accused had to arrange the VCDs further?

A. The Accused arranged it in a...