HKSAR v. Lau Wood Wah

HCMA000823/1998

HCMA823&870/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 823 & 870 OF 1998

(On appeal from NKC 4571 & 4570 of 1998)

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Coram : Deputy Judge Gill

Date of hearing : 22 January 1999

Date of judgment : 22 January 1999

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J U D G M E N T

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1. I propose to deal with these two appeals together. The appellant is the same in each case, and appeals sentences imposed by the same magistrate, as he then was, A R Wright Esquire, on the day after pleas of guilty in each case.

2. The prosecution's summary of facts in 823/98 reveal that the appellant was the person in charge of a shop selling VCDs. Two undercover officers posing as customers and armed with a search warrant visited the shop. They found that there were many young people frequenting the shop. Displayed on the walls were sexually explicit VCD and DVD covers. They executed the warrant and seized a number of VCDs, DVDs and VCD and DVD covers. The appellant was arrested. There was a viewing of one of the discs at the police station. It depicted men and women performing acts of sexual intercourse, and other acts of sexual intimacy. There was also bestiality. The appellant was charged with, and pleaded guilty to, being in possession of obscene articles for the purpose of publication, namely 1843 VCDs and 17 DVDs. For that he was sentenced to 9 months' imprisonment. That is the sentence he is appealing against. He was also charged with displaying indecent matter, namely 76 VCD and 8 DVD covers. For that he was sentenced to a fine of $10,000. He filed no notice of appeal against that sentence.

3. The summary of facts in 870/1998 are strikingly similar, save that the infiltration by officers was 15 days later and they were met by the appellant calling, "Help yourself to see and find, $50 each, $100 for 2, Category 4 VCDs." Again, there were a number of young people and explicit material was displayed. Again, the search warrant was executed and the appellant arrested. This time, the discs included not only the same sort of material as before but acts of sexual intimacy involving transsexuals. There was yet more explicit bestiality and also buggery.

4. The appellant was charged with, and pleaded guilty to, the same two offences as before, this time for possessing for sale 1994 VCDs and 4 DVDs and for displaying 106 VCD and 4 DVD covers. For the first, he was sentenced to 9 months' imprisonment to run as to 3 months' consecutivelty with that imposed in 823/98, making 12 months overall. He is appealing that sentence. For the second, he was fined $10,000. He has not filed notice of appeal against that, but informally has expressed grievance that the prison sentence and fine represented a double penalty.

5. The magistrate, in dealing with 823/98, regarded the summary of facts as revealing acts which went beyond the usual limits of obscenity, and conducted a sample viewing, which confirmed acts of bestiality going close to the uppers limits of obscenity. He paid heed, as of course he was entitled to, to the prevalence of trade in sexually explicit VCDs and DVDs and that the appellant's shop was frequented by young people.

6. He adopted a starting point of 12 months and reduced that by 3 months for the plea, which was not at the first instance.

7. The appellant had a record of 29 previous convictions, which precluded any credit for any previous good character.

8. In 870/1998, the magistrate found the facts and circumstances substantially the same as those in 823/1998, with, of course, the aggravating feature that the appellant committed this offence whilst on bail for the first. Adopting the same starting point and discount for plea as before, he fixed on the sentence 9 months for the 1st charge, which he ordered to run part consecutively and part concurrently with that in 823/1998 to pay heed to the principle of totality. As to the 2nd charge, the appellant expressed an ability to pay a fine and agreed to it being met from his bail.

9. Finally the magistrate ordered costs against the appellant of $5,000 because his initial pleas of not guilty necessitated additional expenditure incurred that an earlier plea would have avoided.

10. In arguing against these sentences, counsel for the appellant before me has submitted on the cases that 12 months as a starting point was excessive; that the discount was too light; that the prison sentences, taken together and with a third matter, were excessive and offended the principle of totality; and that it was wrong for the appellant to be further penalised by fines and costs.

11. In dealing with charges of possession of obscene articles for the purpose of publication, the magistrate adopted starting points towards the upper end of sentences imposed for offences of this nature. But he was, in my view, fully justified in doing so, given the extreme nature of the contents that a sample viewing exposed. There was also a significant amount of material seized. And that the shop was frequented by young people who had ready access to this material was a seriously aggravating feature. That the appellant was blatant enough to continue operating whilst on bail was a further significantly aggravating feature associated with the second set of offending.

12. The appellant should consider himself fortunate that the magistrate adopted a generous attitude towards the principle of totality by extending the overall sentence by only 3 months. I am also aware that he was dealing in addition with a third set of offences not the subject of this appeal and that the total overall, including this set, meant that the overall prison sentence was increased to a total of 15 months.

13. My remarks as to his generosity of spirit for that are maintained, indeed enhanced.

14. The reduction for plea by one quarter because it was not made at first instance was not an improper course. Offenders are encouraged to plead as soon as possible by a reward for doing so of a reduction of up to one-third. Those who do not do so first up must expect a lesser reward.

15. It behoves me to adjust the sentences already imposed if I find them wrong in principle or manifestly excessive. In my view, the magistrate erred under neither head. The terms he imposed individually and overall were not a day too long for the appellant to serve. The costs order was within his discretion, and in the circumstances I will not disturb that either.

16. The appellant has not formally appealed against the fine imposed in 870/1998, beyond lodging an informal grievance against what he perceives as a double penalty. But I gave leave for counsel to address me on this sentence as well.

17. The appellant's claim that he has had to suffer a double penalty is a fallacious one. He has been dealt with on a separate charge to which he pleaded ultimately guilty, and the magistrate formed the view, and in my view, correctly, that the appropriate penalty for that should be a fine. That sentence too shall not be disturbed.

18. The appeals against sentence in respect of 823/1998 and 870/1998 are without merit and are dismissed.

Representation:

Mr Andy Hung (DLA) for the Appellant

Mr Hayson K S TSE, Government Counsel for the Respondent