The Queen v. Kwong Wing Fat

HCMA000569/1985

HEAD NOTE

Sentence - a sentence of imprisonment may not be ordered to run consecutively to a drug detention treatment order.

Sentence of immediate imprisonment proper for publishing objectionable article.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.569 OF 1985

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BETWEEN

Coram: O'Connor, J.

Date of Hearing: 12th August 1985

Date of Judgment: 12th August 1985

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JUDGMENT

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1. The appellant was sentenced to 12 months imprisonment on each of two charges of publishing an objectionable article for gain contrary to section 4(1)(a) and section 4(2) of the Objectionable Publications Ordinances.  The sentences were ordered to run consecutively with each other and also consecutively with a drug addiction treatment centre order, and a sentence of 4 months' imprisonment to which he was already subject. The sentences in the present case were imposed on the 27th May 1985. The drug 'addiction treatment centre order and the sentence of 4 months imprisonment were dated 22nd May 1985.

2. It is wrong in principle to order a sentence of imprisonment to run consecutively to an order of a rehabilitative nature, R. v. Leung Cheung Chung, Magistracy Appeal No. 17 of 1984. More specifically, a sentence of imprisonment, by virtue of section 6A of the Drug Addiction Treatment Centres Ordinance, Cap. 244, cannot be lawfully made to run consecutively to a drug addiction treatment centre order. I therefore ordered that the sentences in the present case do not run either concurrently with, not consecutively to, the drug addiction treatment centre order, that order will take effect in accordance with section 6A of the Drug Addiction Treatment Centres Ordinance.

3. The appellant was the editor of a magazine. Due, perhaps, to the good taste of the public it did not thrive. Two of its issues, those of 23rd November 1984 and 14th March 1985 were the subject matter of the charges. They were on sale generally to the public in Hong Kong for the price of $5. The magazines contained extremely obscene photographs and descriptive writing. The matters covered included paedophilia, bestiality, defecating, bondage and masturbation. The material is at the top, or close to the top of the scale of hard pornography. That does not mean that it necessarily calls for the maximum sentence. Other matters have to be borne in mind, such as the manner and extent of publication, and whether there are matters personal to the defendant which have mitigating effect.

4. The appellant pleaded guilty. I have been told that this is the first case in which an immediate custodial sentence has been passed in Hong Kong for such offences. I take leave to doubt that assertion. Unless my recollection is faulty, I myself as a magistrate, on occasion, passed immediate custodial sentences, for such type of offences some twenty years ago. However that may be, recently warnings have been given that immediate custodial, sentences were appropriate for such offences, and would be passed in appropriate cases. It may in future be necessary to increase the length of sentences imposed.

5. This is certainly a case for immediate custodial sentences, however in the circumstances I considered two years imprisonment to be excessive for the totality of criminal conduct. I concluded 12 months' imprisonment appropriate, and that this could most appropriately be achieved by allowing the appeal to the extent that the two sentences, each of twelve months' imprisonment, should run concurrently with each other, but consecutively to the sentence of 4 months' imprisonment to which the appellant was already subject.

Representation:

Shane Cunningham instructed by Mui and Sin for Appellant.

I.G. Cross, Acting Senior Assistant Crown Prosecutor, for Respondent/Crown.