HKSAR v. Lee Kam Wing

HCMA001196/2003

HCMA 1196/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1196 OF 2003

(ON APPEAL FROM ESCC 3328/2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 26 March 2004

Date of Judgment: 26 March 2004

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J U D G M E N T

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1.This is an appeal against sentence. The Appellant originally had lodged appeals against both conviction and sentence.

2.But in court, he had admitted that he made a mistake and he was not appealing against conviction as he only wants to appeal against sentence. So I therefore dismissed his appeal against conviction.

3.The Appellant had pleaded guilty in the Magistrate's court to one charge of possession of obscene article for the purpose of publication. The number of these obscene discs were 3,088 and this was found in a shop in the Oriental 188, Shopping Arcade in Wan Chai.

4.The learned Magistrate had observed that this type of offence is extremely prevalent and the Oriental 188, Shopping Arcade had featured very commonly in this type of cases coming before his court. The learned Magistrate observed that the value of the DVDs would amount to some $21,000 and the VCDs would be somewhere in the region of $61,000.

5.The Appellant is aged 57 and has 30 previous convictions. His last conviction was similar to the present one and that was in March 2003 when he was given 6 months' imprisonment. It would appear that that did not deter him because he had committed the same offence again.

6.The learned Magistrate took a starting point of 16 months and reduced it to 10 months' imprisonment for the plea. He also imposed a fine of $20,000 after making an enquiry from Defendant about his means.

7.The Appellant appears in person and his ground of appeal would appear to be that he is not willing to pay the fine. He claims that to fine him on top of a custodial sentence is not fair.

8.As Mr Cheung has pointed out in the case of HKSAR v Chan Mun Lung, 2003 HKC 202, the Court of Appeal had said that for an offence of this nature an immediate custodial sentence of 9 to 12 months as a starting point was appropriate. But a higher starting point could be adopted in cases involving a large number of offensive articles sold in shop premises.

9.In this case, the Appellant was in possession of over 3,000 obscene discs. So the learned Magistrate's starting point of 15 months cannot be said to be manifestly excessive nor do I consider that the additional financial penalty of $20,000 to be excessive in view of the Appellant's continued disregard for the law, so the appeal is dismissed.

Representation:

Mr Cheung Wai Sun, DPGC of the Department of Justice, for the Respondent

The Appellant, in person