HKSAR v. Tan Po Jun

HCMA001351/2000

HCMA1351/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1351 OF 2000

(ON APPEAL FROM ESCC 4726 OF 2000)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 31 January 2001

Date of Judgment: 31 January 2001

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J U D G M E N T

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1. This is an appeal against sentence only. The ground or grounds advanced is that the sentences imposed were too severe and that a fine should not have been additionally imposed to the terms of imprisonment.

2. The appellant was convicted on his own plea at Eastern Magistracy of an offence of publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390; and of an offence of possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the same Ordinance.

3. The facts of the two offences are, unfortunately, quite familiar. An undercover officer posing as a customer went to a shop run by the appellant at 188 Wanchai Road, Hong Kong at the Oriental Shopping Centre. That address appears repeatedly on charge sheets dealing with this sort of offence.

4. The undercover officer had purchased five video cassette discs from the appellant who was the person-in-charge of that shop. Subsequently, the shop was searched and a further 2,707 video discs were seized. The five purchased video discs and 30 randomly selected from the 2,707 seized video discs were viewed, and were found to contain scenes of explicit sexual acts of males and females with particular focus on their sexual organs.

5. The learned magistrate took a starting point of 15 months' imprisonment in respect of each offence. In doing so, he commented that the trade in these items has continued unabated even in the face of the custodial sentences meted out by the courts.

6. In my view, it cannot be said that the starting point of sentence in respect of either offence was too high. The starting point of sentencing in respect of these offences has been generally increased in recent years. This no doubt reflects the recognition of the prevalence of the offences by experienced magistrates whose sentences now incorporate a greater factor of deterrence than previously. No doubt those magistrates are well aware of the prevalence of these offences within their own area of jurisdiction.

7. The only mitigating factor the learned magistrate took into account was the appellant's plea of guilty, and that was the only mitigating factor of any substance advanced before the magistrate. The starting point of sentence was reduced to sentences of 10 months' imprisonment in respect of each offence. Given the circumstances of the offences, the sentences were properly ordered to be served concurrently.

8. The appellant was also fined $5,000 in respect of each offence. The purpose of a fine is to demonstrate that crime does not pay. The totality of the fine in this case was $10,000, that is a completely reasonable sum given the profits which are obtained from sale of these articles. It has been said that the level of fine imposed should be something more than a mere irritation. It should constitute a real punishment within the boundaries of the offenders' actual ability to pay.

9. In the present case, the appellant informed the court that he was able to pay the level of fine out of his bail monies. That enquiry was properly made by the learned magistrate.

10. It cannot be said that the level of fine was too severe as far as the appellant was concerned, nor that the sentences imposed in their totality are too severe. The appeals against sentence are dismissed.

Representation:

Mr. Vincent Wong, SGC of the Department of Justice, for the Respondent

Appellant in person