HKSAR v. Liu Bing Fat

HCMA000939/2002

HCMA939/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 939 OF 2002

(On appeal from ESCC 2207 & 2498 of 2002)

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Coram: Deputy High Court Judge Day in Court

Date of Hearing: 15 November 2002

Date of Judgment: 15 November 2002

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J U D G M E N T

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1.The appellant in this case appeals sentences passed in two separate cases on the same day. In case No. ESCC 2207/2002, he was convicted on his own plea of two charges : (1) publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390; and (2) possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the same ordinance. On each charge he was sentenced to 10 months' imprisonment, to be served concurrently and was also fined $10,000 on each charge.

2.The second case dealt with at the same time was No. ESCC 2498/2002, in which he was convicted on his own plea of a single charge of possession of obscene article for the purpose of publication. For this he was sentenced to a term of 10 months' imprisonment and fined $20,000. This prison term was to be served consecutively to that imposed in ESCC 2207/2002.

3.The total sentence was 22 months' imprisonment and a fine of $40,000.

4.Today, he complains that the sentence of the fine and prison amount to a double punishment and that the court should set aside the fine and reduce the sentence.

5.He was represented at his trial, and counsel on his behalf told the court that he is 52 years old and is on public assistance and has been unemployed for 20 years as a result of a disability. The appellant finds it difficult to make ends meet on public assistance and his financial difficulties drove him to these offences.

6.Both offences were committed at the same shop at the shopping center at 188, Wanchai Road. Those charged in ESCC 2207/2002 were committed on 28 June 2002 whilst the other offence was committed on 3 July 2002. The facts of the offences committed on 28 June were straightforward. Five VCDs were bought from the appellant at the shop and, shortly thereafter, police raided the premises and seized a further 2284 VCDs. The accused admitted they were obscene and a later random examination confirmed this to be so. The facts of ESCC 2498/2002 are equally straightforward. Police raided the shop and seized 4078 VCDs, the appellant was selling them and agreed that they were obscene, a fact that was later confirmed by examination.

7.In sentencing the appellant, the magistrate noted, as he was entitled to do, that these offences are prevalent and that the shopping center, and indeed this particular shop, is a notorious outlet for the sale of obscene articles. The magistrate noted that immediate custodial sentences are not having any deterrent effect as the trade continues to flourish.

8.In this case, of course the 2nd offence in ESCC 2498/2002 was committed five days after his arrest for the 1st offence in ESCC 2207/2002. This man may well not be the man behind the operation but he is at the frontline of it. Without people to man the shops the trade cannot flourish, and I note that this shop appears to have had little difficulty re-stocking its shelves within a week.

9.The appellant has a bad record, including a number of similar offences. He is a persistent offender and this is a bad case of its kind. The magistrate took a starting point of 15 months in each case and reduced those starting points by one-third to reflect the guilty pleas offered by the appellant. In my view sentences of 15 months after trial for these offences cannot be complained of. Indeed, that is the level of sentence confirmed on appeal in a number of recent cases (see, for example, R.v. Chan Yuet Wing, HCMA741/1999, R.v. Chung Yun Hung, HCMA1245/1999, R.v. Tan Po Jun, HCMA1351/2000 and R.v. Chan Mun Tong, HCMA1350/2000).

10.The magistrate ordered the sentences for the two offences in ESCC 2207/2002 to run concurrently. They were part and parcel of the same enterprise. The sentence in ESCC 2498/2002 was ordered to be served consecutively to that in ESCC 2207/2002. It was an entirely different offence on a different day aggravated by the fact that it was committed shortly after his release from custody in connection with the first one. A consecutive sentence is entirely appropriate.

11.The imposition of fines in addition to prison terms for these offences is well-recognized and, in this case, the magistrate satisfied himself that the bail money was available to the appellant should he wish to use it to pay the fine. An additional three months is to be served in each case if the fine is not paid. These sentences are not excessive and the appeals are dismissed.

Representation:

Mr Gavin Shiu, SADPP (Ag.) for DPP, for the Respondent

The Appellant, in person (in cell)