HKSAR v. Kwok Pak Sing

HCMA000980/2002

HCMA980/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.980 OF 2002

(ON APPEAL FROM ESCC 2346, 2530 AND 2696 OF 2002)

----------------------

-----------------------

Coram: Deputy High Court Judge Line in Court

Date of Hearing: 3 December 2002

Date of Decision: 3 December 2002

--------------------

D E C I S I O N

--------------------

1.You are in prison because you chose to be the front man for a criminal business that sold obscene video discs.

2.You are a 55 years old man, long addicted to drugs with 21 previous court appearances.

3.In agreeing to be the front man you knew full well that the authorities would raid the premises at 188 Wanchai Road, notorious as they are for such trade, which is carried on openly there.

4.You knew you would go to prison. Sentences of 10 months on the inevitable plea of guilty for conduct such as yours, coupled with a fine taken from the bail money provided by your criminal employers, are the norm. I cannot believe that you would have taken the job without knowing the tariff.

5.The raid took place as expected on 24 July of this year. You were arrested and bailed.

6.Six days later you were back doing the same thing in the same building. You were bailed again.

7.Fourteen days thereafter you were still doing the same thing in the same building. You were arrested and bailed.

8.That history of your conduct displays a complete disregard for the law. You played an indispensable part in crime which was carried on openly in defiance of the court down the road.

9.The magistrate, who was the Principal magistrate at Eastern Magistracy with enormous experience of cases like yours, took the 15 months starting point for each crime. That starting point has the blessing of numerous judges hearing like appeals. He allowed you a third discount for your pleas of guilty. He then overlapped the sentences, with an eye to totality, by making two periods of five months run consecutively, making a total of twenty months imprisonment. He fined you a total of $60,000, which came from the bail money of $75,000 which was conceded by the lawyer representing you to be available for the payment of fines.

10.Those sentences were entirely predictable. The magistrate explained to you fully why he passed them. He accurately catalogued the aggravating features of your crimes.

11.You come to this court today saying that you were dealt with too severely. You advance nothing that could begin to attack the basis of the sentencing or its application to your particular case.

12.You ask for a reduction in the amount of the fines. I pointed out to you that such would allow you to make a profit from the criminal enterprise because it was clear that the money came from those employing you in the obscene VCD business.

13.You responded by saying that the bail money came from your savings. I told you I did not believe you. I mentioned bank records. You changed that to saying that you borrowed the bail money. I then asked you why, if that was so, did the duty lawyer representing you offer it as being available for the payment of fines. You gave an answer that was not particularly clear but it suggested that the lawyer did not have your authority to say that. I do not believe you. Looking at the transcript of what passed in the magistrates' court, it is quite clear that the duty lawyer asked the magistrate to return the balance of the bail money to a Mr Chan, someone that he named. From that it is clear that you must have discussed with the duty lawyer the disposal of the bail money. You are not a man afraid to speak out. You have sought to interrupt me twice in the course of these reasons I am giving you now for upholding the magistrate and dismissing the appeal. I have no doubt that if there was any misunderstanding at the time about the disposal of the bail money you would have said something.

14.In the circumstances I confirm the orders made by the magistrate. I have been tempted to order that the sentences run afresh from today. You are someone who understands the system as well as I do and you know how you have abused it. At the end of the day 20 months is quite a long sentence and I will not add to it by taking away time spent, but I warn you that you came perilously close to having that happen. If I should see you again in circumstances like this it would happen.

Representation:

Mr Thomas Law, DPGC of the Department of Justice, for the Respondent

Appellant in person