HKSAR v. Tsang Kam Ping

HCMA000049/2000

HCMA49&50/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.49 & 50 OF 2000

(ON APPEAL FROM TWCC3565 & 3570/1999)

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Coram: Deputy Judge Tong in Court

Date of Hearing: 23 February 2000

Date of Judgment: 23 February 2000

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J U D G M E N T

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1. The appellant was charged with two separate counts of possession of obscene article for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390, Laws of Hong Kong. The number of obscene video discs involved were 411 and 331 pieces respectively.

2. The appellant pleaded guilty to the charges and was sentenced to two terms of three months in respect of each charge, to run consecutively. The learned magistrate also imposed a fine of $6,000 for each offence, and the bail money was deducted for the purpose of the fine. The appellant sought to appeal against the sentences.

3. The appellant had a total of 27 previous convictions including two similar offences. The video discs seized contained scenes of oral sex and anal intercourse. The learned magistrate stated in his Statement of Finding that such offences were prevalent in his jurisdiction and having considered the relevant authorities, he sentenced the appellant to a total of six months plus a fine of $12,000.

4. The ultimate terms of imprisonment imposed could not be said to be wrong in principle or manifestly excessive, although it would have been desirable is the learned magistrate had stated his starting point and explained what discount, if any, was given to the appellant. However, regarding the financial penalty, there was no clear reference as to why a fine was also imposed.

5. The respondent had rightly drawn my attention to the fact that the appellant had disclosed to the probation officer the profit he had made in connection with the business of selling obscene video discs and it was submitted that a financial penalty on top of the term of imprisonment would not be wrong.

6. Having considered the circumstances, I took the view that it would be sufficient punishment for the appellant to be imprisoned for the offences and be fined for $3,000 in relation to each offence. A total of $12,000 fine would appear to be excessive. I would allow the appeal to this extent.

7. Hence the total fine for the two charges would be $6,000 instead of $12,000. The six months imprisonment would not be disturbed.

Representation:

Mr David Leung, SGC of DPP, for the Respondent

Appellant in person, present