HKSAR v. Chan Kin Hung

HCMA001025/1998

HCMA 1025 & 1026 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NOS. 1025 & 1026 OF 1998

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Coram: Deputy Judge Jackson in Court

Date of Hearing: 8 January 1999

Date of Judgment: 8 January 1999

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J U D G M E N T

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1. This is an appeal against a total sentence of 15 months imprisonment imposed upon the appellant at Kwun Tong Magistrates Court for offences of possession and publication of obscene articles.

2. The offences to which the appellant pleaded guilty were as follows:

1. On 2nd September 1998 possessing, for the purpose of publication, at Shop 113 Kwun Tong Plaza 668 obscene video compact discs.

2. On 8th September 1998 publishing obscene articles namely 2 video compact discs at Shop 303 Kwun Tong Plaza and

3. On 8th September 1998 possessing for the purpose of publication at Shop 303 Kwun Tong Plaza 784 video compact discs.

3. The maximum sentence for each of these offences is one of 3 years imprisonment and a fine of $1 million.

4. The learned Magistrate adopted a starting point in sentence of 12 months imprisonment for each offence and reduced it to 9 months in view of the appellant's pleas of guilty. He ordered that the sentences imposed in respect of the 8th September offences should be served concurrently and that 3 months of the sentence imposed in respect of the 2nd September offence should be served concurrently to the "8th September sentences" and 6 months should be served consecutive to those sentences making a total of 15 months imprisonment.

5. Just pausing here for a moment; given the dates or sequence of the offences, it seems to me that as a matter of principle the sentences in respect of the 8th September offences should have been expressed as being concurrent with or consecutive to the sentence imposed for the 2nd September offence and not vice versa.

6. The appellant's grounds of appeal are three fold: firstly that the starting point in sentence of 12 months adopted by the learned Magistrate in respect of each offence was too high; secondly that insufficient discount was given to the appellant in respect of his pleas of guilty; and thirdly that a total term of 15 months was manifestly excessive.

7. In his argument before me concerning the first ground of appeal, Mr Kwok has sought to say, inter alia, that the quantity of the articles possessed for the purpose of publication is of little consequence, and that it is what those articles contain that is important. I have to say that with respect I do not follow that argument, let alone agree with it. Mr Kwok has then referred me to the case of The Queen v LAM Wing-ching [1991] 1 HKLR 217 in support of the first ground of appeal and in particular to the paragraph on the final page of that judgment which contains the sentence - "The proper sentence in bad cases such as this is, in my judgment, six months imprisonment".

8. In that case only 79 tapes were the subject of the offences and Mr Kwok repeats his proposition that it is not the quantity that is important and that therefore, as the offences committed by the appellant were in no way dissimilar to those committed by the defendant in LAM's case (apart from the number of articles), 6 months imprisonment is the proper sentence to be imposed and that upon conviction following trial.

9. In my view Mr Kwok's argument as regards number or quantity (as against quality) is certainly novel but it also unsustainable as a matter of common sense.

10. The learned Magistrate in his extempore reasons for sentence had this to say in relation to the 8th September offences - and I quote:-

"among the many video compact discs are a significant number involving bestiality (51 in total); 25 involving sadism and masochism; 12 involving pregnant women and 3 involving homosexual activity .... the number of these discs involving deviant and degraved practices are significant ......"

He went on to say to the appellant - and again I quote:-

"On 8th September you were found selling these discs at Shop 303 ... which is the location where you were found in March of this year selling discs and for which you received a sentence of imprisonment ....."

The conviction to which the learned Magistrate was there referring was a conviction of the appellant on 10th March 1998 of two offences (one of publishing and one of possession for publication of obscene articles) in respect of which he was sentenced to a total of 4 months imprisonment.

11. In his reasons for sentence in respect of both the 2nd September and 8th September offences, the learned Magistrate had this to say:-

"This type of offence is prevalent in Kwun Tong and Kwun Tong Plaza is a notorious outlet for obscene VCDs. Both Shop 113 and Shop 303 are among the most active outlets selling obscene VCDs in Kwun Tong Plaza and there have been many convictions for this type of offence in relation to each shop in the recent past. The Courts in this Magistracy have issued warnings since January, 1998 that custodial sentences would be passed for these offences even in the case of first offenders such was the flood of cases in this area.

The Defendant committed 2 separate offences, the second while on bail for the first. I considered this an aggravating factor meriting a consecutive sentence. Given the nature of the offences, and their prevalence, I thought immediate custodial sentences were called for (HKSAR v. Lee Pui-lam and anor. M.A. 1050/97; Lam Pak-ying M.A. 636 & 637/97; Chow Kun-lap [1996] 2 H.K.C.L.R. 83; Lam Wing-ching [1991] 1 H.K.L.R. 217.)"

He went on to say:-

"Given the quantity of discs and the relatively high degree of obscenity involved in many of the discs, I took [as a starting point] 12 months imprisonment on each charge ...... I was aware that the Defendant was merely an employee on a daily wage ...... the only mitigating factors were the pleas of guilty by the Defendant. Since the Defendant was caught in flagrante delicto, I did not allow a reduction of 1/3 of the sentence."

12. As I say the learned Magistrate referred to the fact - that the 8th September offences were committed by the appellant whilst he was on bail for the 2nd September offence.

13. Given the legislative intent as regards offences of this nature; given the number of the offending compact discs; given the nature of those discs; given the fact that the appellant continued to both publish and possess for publication grossly obscene discs despite his arrest on 2nd September and given the fact that he was convicted of similar offences and sent to prison for them some 6 months earlier, it is my firm view that not only can it not be said that the learned Magistrate imposed a sentence which was manifestly excessive or wrong in principle but that he erred, if at all, in imposing total sentence which was exceedingly lenient.

14. Had that been the end of the matter I would have increased the sentences upon the appellant or, at the very least, ordered loss of time. However that is not the end of the matter. The learned Magistrate did not, in sentencing the appellant, give him the customary one-third discount, in respect of his guilty pleas. As the Court of Appeal has repeatedly said (and as it reminded me in the case of H.K.S.A.R. v Wong Hing-wan [1998] Criminal Appeal No. 88 ...

"if the one third discount is not given when it seems otherwise appropriate because of a timely plea, the judge should state his reasons for not so doing so."

15. In the present case the learned Magistrate said that he was not doing so because, in effect, the appellant was caught 'red handed'. That, as I understand the position, is not a sufficient reason for not allowing what otherwise would be the proper discount.

16. Accordingly I allow this appeal to the following extent. In respect of each of the offences to which the appellant pleaded guilty his sentence will be reduced to a term of 8 months imprisonment. Those terms will be served concurrently save that 5 months of the terms imposed in respect of the 8th September offences will be served consecutively to the term imposed in respect of the 2nd September offence, i.e. the total term of imprisonment imposed in respect of the three offences will be reduced from 15 to 13 months.

Representation:

Mr Wesley W C Wong, SADPP (Ag) for HKSAR/DPP.

Mr Eric Kwok instructed by DLA for the Appellant.