HKSAR v. Fung Yim Keng

HCMA000773/2003

HCMA 773/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 773 OF 2003

(ON APPEAL FROM ESCC 2388/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 21 October 2003

Date of Judgment: 21 October 2003

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J U D G M E N T

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1.This Appellant was convicted on one charge of Possession of Obscene Articles for the Purpose of Publication, contrary to s. 21(1)(b), of the Control of Obscene and Indecent Articles Ordinance Cap. 390. He was sentenced by the Magistrate to 8 months' imprisonment and a fine of $20,000, which the Appellant agreed could be paid from his bail money. The Appellant appeals against sentence.

2.The appeal is only about the fine; the Appellant had nothing to say on appeal about the term of imprisonment imposed, but said that he should not be fined, or that the fine should be less.

3.The Magistrate, in sentencing, took into account that this was a prevalent offence and noted a starting point of 12 months and a fine for a person of clear record were appropriate sentences after plea, repeat offenders would attract higher sentences and a fine. She considered the Appellant was a persistent offender, as can be seen from his record.

4.Apart from drug offences between 1991 and 2000, the Appellant was charged in 2001 with publishing obscene articles and was sentenced to 8 months' imprisonment. In January 2002, he was sentenced to 10 months for possession of obscene articles for publication; in September 2002 he was given a further 8 months for each of 3 charges of possession of obscene articles for the purpose of publication. No fines were imposed for those offences.

5.On this occasion the Appellant was in possession of what can be regarded as a large number of items, 2,175, an aggravating feature.

6.The Magistrate took 15 months as her starting point and reduced it to 10 months for the plea of guilty. She gave a further 2 months reduction because the Appellant had admitted the obscenity of the discs, without requiring them to be examined by the Obscene Articles Tribunal. I do not consider that this was a proper ground for a reduction, that matter is taken into account in the discount for a plea of guilty.

7.A fine of $20,000 is not excessive given the circumstances of the offence, nor excessive in terms of the Appellant's record. The appeal against sentence is dismissed. The sentence of imprisonment is increased by 2 months, to make the sentence one of 12 months' imprisonment.

8.The adjusted sentence will be 12 months' imprisonment and a fine of $20,000.

Representation:

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

Fung Yim Keng, Appellant, in person