HKSAR v. Tam Yiu Lam

HCMA000062/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 61 & 62 OF 1999

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Coram: Deputy Judge Jackson in Court

Date of Hearing: 5 February 1999

Date of Delivery of Judgment: 5 February 1999

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J U D G M E N T

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1. On 4th December 1998 this appellant pleaded guilty in the Tsuen Wan Magistracy to

(a) an offence of possessing obscene articles (720 video compact discs) for the purpose of publication committed on 1st December 1998 at Shop No. A55 Tsuen Fung Centre in Tsuen Wan and

(b) an offence of possessing obscene articles (241 video compact discs) for the purpose of publication committed on 2nd December 1998 at Shop No. A24 Tsuen Fung Centre in Tsuen Wan.

2. In respect of the first offence the learned Magistrate sentenced the appellant to a term of 3 months' imprisonment and fined him $8,000.00 (the amount of his bail money). In respect of the second offence the learned Magistrate sentenced the appellant to a term of 4 months' imprisonment and fined him $8,000.00 (the amount of his bail money). The term of 4 months was ordered to be served consecutive to the 3 month term.

3. It is against these sentences which the appellant appeals; however this morning he has sought to say that he has no complaint about the sentences of imprisonment: what he takes exception to is the imposition of the fines in addition.

4. The appellant is aged 39 and has no fewer than 23 previous convictions for dishonesty; for violence; for possessing dangerous drugs; and on 8th May 1998 and 13th May 1998 for offences of possessing obscene articles for publication. In respect of those 2 offences the appellant was given firstly a suspended sentence of 3 months' imprisonment and secondly an immediate sentence of 2 months' imprisonment. By virtue of the second conviction the suspended sentence was activated and ordered to be served consecutive to the 2 month term.

5. In his careful reasons for the sentences imposed in the present case, the subject of the appeal, the learned Magistrate deals with these matters in some detail. In my view he cannot be faulted in the sentences which he imposed. He said, with reference to the 2nd offence in time, the following:-

"The appellant also committed this offence the day after being arrested and released on bail (in respect of the 1st offence). The premises the appellant was operating is a notorious location in Tsuen Wan for the sale of obscene video discs. The appellant was typical of the drug addicts who are used as storekeepers."

6. I would just add this; that the maximum sentence for one offence of possessing obscene articles for publication is a fine of $1 million and imprisonment for 3 years.

7. As Miss HO counsel for the Respondent has argued before me this morning the judgment in AG v. TANG King Ming [1986] HKLR 210 is the plainest authority for the preposition that and I quote:-

"Where the court is satisfied

(a) that the material is obscene

(b) that the trade is flourishing in the face of existing sentences

(c) that the case before it constitutes a contribution thereto so that

(d) deterrence is a paramount consideration,

immediate custodial sentences coupled with substantial fines should be considered as the primary option ...."

8. That is precisely the course that the learned Magistrate took in this case.

9. There is nothing in this appeal. It is dismissed.

Representation:

Miss Winnie HO, GC for HKSAR/DPP

Mr TAM Yiu-lam, Appellant in Person