HKSAR v. Yu Fai Tat

HCMA000774/2003

HCMA 774/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 774 OF 2003

(ON APPEAL FROM ESCC 2386/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 29 October 2003

Date of Judgment: 8 November 2003

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J U D G M E N T

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1.The Appellant was convicted of one charge of Possession of Obscene Articles for the Purpose of Publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. He was sentenced to 8 months' imprisonment and fined $20,000. He now appeals against the sentence only.

2.The Appellant was found in a shop selling obscene discs. 2736 VCDs and 1262 DVDs were seized and a random selection of the discs was viewed. The discs contained scenes of oral sex and explicit sexual acts between males and females with particular focus on sexual organs.

3.The Appellant had 15 previous convictions, 4 of them similar. On 10 July 2000, for 2 similar offences he was sentenced to a total of 6 months' imprisonment; on 14 July 2000, he was sentenced to a total of 12 months' imprisonment on 2 similar counts, 4 months to run consecutively to the earlier sentence.

4.The Magistrate was told in mitigation that the Appellant was married with a 12 year-old daughter. His wife and daughter live in China. He was a transportation worker, earning $5,000 a month before his job selling VCDs. He required $4,000 a month to support his family.

5.The Magistrate took into account the nature of the offence, which is a prevalent one and noted that the authorities have confirmed that persistent offenders attract sentences between 10 and 21 months, as well as a fine, on a guilty plea. The Appellant came into the persistent offender category as shown by his record. The Magistrate took 15 months as a starting point, reduced it to 10 months for his plea of guilty and further reduced it by 2 months, because the Appellant had admitted the obscenity of the discs without requiring an examination by the Obscene Articles Tribunal. The Appellant, on enquiry, agreed that the fine could be paid from his bail money.

6.The ground of appeal is that the sentence of 8 months' imprisonment combined with the fine of $20,000 was manifestly excessive. Further, the Magistrate failed to assess the degree of obscenity of the articles in deciding upon sentence. Accordingly, the starting point of 15 months' imprisonment was said to be excessive. Counsel for the Appellant complained that the Magistrate had failed to enquire into the Appellant's ability to pay a financial penalty when assessing the amount of fine.

7.This charge involved a large quantity of discs and a persistent offender. Recent authorities confirm that for persistent offenders a starting point of 18 months' imprisonment and upwards can be justified. The starting point adopted by the Magistrate was appropriate. However the Magistrate was incorrect in reducing the sentence by another 2 months because the Appellant had admitted the obscenity of discs. That matter is taken account of by the one-third discount for the plea of guilty.

8.As for the complaint that there was no inquiry into the means of the Appellant, I note he was represented and counsel told the Magistrate his earnings and his living expenses. It is difficult to see what further inquiry could have been made. Further, the Magistrate asked the Appellant whether or not the fine could be taken from his bail and he agreed that it could. The amount of fine is not inappropriate given the number of discs.

9.In the Admitted Facts details of the nature of the material contained in the discs indicates the material was at the lower end of the obscenity range; no doubt the Magistrate was well aware of that. If the obscenity had been more serious, a higher sentence would have been justified. There is no merit in this appeal against sentence. The appeal is allowed and the sentence increased by 2 months for the inappropriate reduction. The revised total sentence will be 10 months' imprisonment. The fine remains the same.

Representation:

Mr Joseph Wong, SGC, of Department of Justice, for the Respondent

Mr Andrew Raffell, instructed by the Director of Legal Aid, for the Appellant

Remarks:
Appeal by the Appellant to the Court of Final Appeal. Appeal allowed. Please refer to the appeal judgment of FACC000001/2004.