HKSAR v. Koo Tung Wan

HCMA000624/2002

HCMA 624/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 624 OF 2002

(ON APPEAL FROM TMC 1701/2002)

____________

____________

Coram: Hon Jackson J in Court

Date of Hearing and Decision: 18 September 2002

Date of Handing Down Judgment: 24 September 2002

_______________

J U D G M E N T

_______________

1.On 17 June of this year the appellant was convicted on his own plea at Tuen Mun Magistrates Court of an offence of possessing 20 sets of obscene video compact discs for the purposes of publication. He was sentenced to a term of 8 months imprisonment and he appeals against that sentence upon the general ground that it was too severe.

2.The Magistrate, in his reasons for sentence, recited the facts of the offence as follows:-

"On Wednesday, 1 May 2002 at about 1:35pm, a patrolling, plain-clothes police officer saw the appellant at the entrance to the Kin Wing Commercial Building. The appellant had, on a chair next to him, a wooden board with slats thereon to hold VCDs. A box with plastic bags was in front of the wooden board. The appellant continuously shouted: '$100 for four, choose on your own'. The police officer went up to the appellant, who repeated his words to the officer. The police officer then revealed his police identity and arrested the appellant. After being cautioned, the appellant said, 'Ah sir, is so few here, about 20 more discs here, and give me a chance. I will pack up the stuff and leave right now.' The officer then took the appellant to the police station.

Of the 22 discs seized by the police officer, 20 were found to be obscene. A chart was put before me showing the result of the viewing by a police officer of the obscene discs. All the discs depicted heterosexual sexual intercourse and oral sex. On all the discs sex organs were seen. Three of the discs showed sexual intercourse between a human and an animal, five discs showed homosexual activity, three discs showed depictions of anal intercourse and one disc depicted a pregnant woman involved in the obscenity."

3.As to the sentence of 8 months imprisonment which he imposed the Magistrate said this:-

"Whatever may or may not have been the actual gain made by the appellant, the offence committed by the appellant was carried out for commercial gain. The discs were openly on sale to the general public, and, although the number of discs was not large, there were examples in those discs of obscenity not at the lowest level. The courts have taken a serious view of the kind of offence in this case. Immediate sentences of imprisonment are inevitable, even for those with no previous convictions for the offence and where the quantity of obscene articles is small. (HKSAR v. Yu Man Lung HCMA 777/1999)

Accordingly, I took as a starting point a period of imprisonment of 12 months. I reduced the sentence to one of 8 months' imprisonment in recognition of the appellant's plea of guilty. I considered that there were no other mitigating factors."

4.The appellant has 9 previous convictions for offences related to sex, violence, triads and drugs. On 12 October 2001 he was sent to a Drug Addiction Treatment Centre and by reason of the present offence he has been recalled to that centre.

5.In mitigation of the offence in the Magistrates Court Miss Moosdeen, who also appeared in this appeal, sought to say that as the appellant was only helping out a friend and was to receive no financial reward - and as the number of VCDs was relatively small and that the obscenity was not of the worst kind - the offence might appropriately be met by a fine or at least a shorter term of imprisonment.

6.Plainly the Magistrate was unmoved by those submissions as am I. One need look no further than at the judgments in HKSAR v Yu Man Lung HCMA 704/1999; HKSAR v. Tseung Lung Ran HCMA 723/2001 and HKSAR v. Lam Chung Leung HCMA 595/2002 (which were helpfully drawn to my attention by Mr Ho) to be satisfied that this appeal is without merit.

7.It is, accordingly, dismissed.

Representation:

Mr Paul Ho, SGC, for the Respondent

Ms M Moosdeen, instructed by DLA, for the Appellant