Case Document

CAAR000006/1996

IN THE COURT OF APPEAL

Application for Review
1996, No.6

BETWEEN
	ATTORNEY GENERAL

	AND

	CHOW KUN LAP

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Coram: Hon. Power, V.-P., Mayo and Ching, JJ.A.

Date of Hearing: 30 April 1996

Date of Judgment: 30 April 1996

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is an Attorney General's application for review of sentence. The respondent in this matter faced two charges, the first was publishing an obscene article contrary to s.21(1)(a) of the Control of Obscene and Indecent Articles Ordinance Cap.390. That charge particularized that on 2nd January 1996, he at Tokyo Hand Shop No.37, first floor, 2-16 Fa Yuen Street, Mong Kok, published two obscene video tapes. The second charge, contrary to s.21(1)(b) of the same Ordinance, was one of possession of obscene articles for the purpose of publication. It was particularized that he on the same day at the same place possessed 290 obscene video tapes for the purpose of publication. He pleaded guilty to both of those charges and was fined $3,000 on the first charge and $7,000 on the second charge.

2. The facts, which were agreed by the respondent, are set out in the Reasons for Sentence of the Magistrate, Ms. Mary Yuen, as follows:

"On 2 Jan 1996 a police officer was sent as an agent provocateur, with police marked money, for the purpose of buying obscene articles. The police agent met the Defendant inside the shop 'Tokyo Hand' on the 1/F of No.2-16 Fa Yuen Street in Mongkok and was sold 2 video cassette tapes by the Defendant. The tapes were taken back to the plaice station for examination. The judgment of the viewer was the content in the 2 tapes was 'disgusting and filthy involving man (male) and female sexual intercourse and their sexual organs were clearly seen'.

A search warrant was executed at the shop later the same day. In this search a total of 290 tapes were found from the shelves behind the counter. When the Defendant was subsequently interviewed in the Mongkok Police Station he admitted to be the person in charge of the premises and he operated the selling of the video tapes. He sold the tape at HK$200 each. The tapes seized were viewed and the contents were described by the viewer as 'disgusting and filthy involving man (male) and female sexual intercourse and their sexual organs were clearly seen."

3. The Attorney General submits that prison sentences were appropriate for these offences and he asks the court to be guided by the observations made in The Attorney General v. Tang King-ming [1986] HKLR 210 where the Court of Appeal said that:

"comparatively short sentences of imprisonment may well be considered adequate in mild to average cases".

The Court went on to observe that

"Fines or more lenient treatment should continue to be imposed in very small or 'one-off' instances of transgression."

The Attorney General also asks us to be guided by the observation of Bewley J. in The Queen v. Lam Wing-ching [1991] 1 HKLR 217 where he said:

"This trade can be controlled only if people like the appellant are deterred from taking such jobs. Small fines will not have that effect and they cannot pay large ones. The proper sentences in bad cases such as this is, in my judgment, six months' imprisonment."

4. The Attorney submits in short that a fine in such circumstances wholly fails to reflect the gravity of the offences. The question that this court must ask itself is - How bad were these particular tapes? How obscene were they? There were no findings in this regard as the magistrate appears not to have viewed any part of the tapes seized. The Crown has to establish the degree of obscenity relied upon the plea. It is true that the applicant pleaded guilty to both charges but, of course, this plea does not indicate the seriousness of the offence. The Crown also relied upon the agreed facts, particularly the admission by the respondent that a police officer had found the tapes disgusting and filthy. This again does not establish the degree of obscenity as a matter of fact found by the court. The court properly applying its mind to the material before it should have made findings in this regard.

5. There are two questions which we must address in an application such as this:

(1) Did the sentencing court properly assess the degree of obscenity exhibited in the tapes?

(2) Did the sentence properly reflect the seriousness of that obscenity?

6. Once the court is satisfied that it can answer the first question in the affirmative it can proceed to consideration of the second question. However, in the present case the magistrate made no assessment and, indeed, appears to have overlooked the duty upon the court to make such an assessment. Mr. Reading, who appears for the Attorney, acknowledges that to be so and asks us to deal with this upon the basis that it is an offence at the lower end of the range of seriousness. We have given anxious consideration to this matter but we are quite satisfied that in the absence of a finding as to the degree of obscenity there is no basis upon which we could properly review sentence. The Attorney's application must, therefore, be refused.

7. Having said this, we wish to state with emphasis that where it is shown that there is serious obscenity, whether it be proved or admitted, a sentence of imprisonment is undoubtedly appropriate even for a first offender and that it is the duty of the sentencing court in each case to make its own assessment as to the degree of obscenity involved.

8. The application is refused.