HKSAR v. Easy Finder Ltd

HCMA 1010/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA1010 /2004

(On appeal from ESS No.24317/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court 

Date of Hearing: 11 January 2005

Date of Judgment: 11 January 2005

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JUDGMENT

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1.The Appellant was convicted upon its own plea of one charge of publishing an indecent article, the covering or packaging of which is not indecent, without warning notice, contrary to sections 24(1)(b)(i), 24(1D) and 24(2) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. The Appellant was fine fined $250,000. It now appeals against the fine.

Brief Facts

2.The facts disclosed that at the material time, a featured article in Chinese entitled “ 話題嚟料   直擊 13 歲變態狗殺手” published in a magazine entitled “Easy Finder” was found to contain indecent material detailing cruel acts of malicious torturing performed by two teenagers on stray dogs and cats, including beating with stick, strangling with nylon ropes, crushing heads with bricks and stone slabs etc.  A full-page photograph in the article shows a dog being strangled by a teenager, who is described in the photo caption as one of the “dog killers”. Three other sequential photographs show the teenager crushing a dog with a stone slab. In addition to these photos, the article contains extensive and detailed descriptions of the malicious torturing of dogs and cats by these two teenagers.

Grounds of Appeal

3.Mr. Peter Duncan SC leading Mr. Richard Wong of counsel submitted that the fine of $250,000, which was a five-fold increase of the in the fine last imposed on the Appellant, was manifestly excessive in the circumstances.

Response from the Respondent

4.In response Ms. Sally Yam, Government Counsel submitted a chart outlining the levels of fine imposed in similar cases in 2004 to assist the court. Such information was not placed before the learned Magistrate. The range of fine imposed was between $2,500 to $100,000. A fine of $100,000 was the highest imposed for such an offence before the present case. Ms. Yam accepted that the amount of fine imposed on the Appellant in the present case is manifestly excessive. She concedes that the indecency of the articles and the fact that the Appellant was a repeated offender should not justify a substantial enhancement of the level of fine.

Judgment on Appeal

5.In view of the concession, I rule that the fine of $250,000 is manifestly excessive. I now have to decide what is the appropriate fine.

Mitigating factors advanced

6.In mitigation, Mr. Duncan brought my attention to the following:

(a)    the article was factual;

(b)   the publication of the article served a public interest;

(c)    the Appellant accepted the classification as Obscene Article without any hearing; and

(d)   the Appellant pleaded guilty to the summons at the first available opportunity.

(e)    while the Appellant had 13 previous convictions, the offending material was of a sexual nature and this is the first time cruelty to animal was involved; apart from a fine of $50,000 on the last occasion, most of the fine imposed on the Appellant before was $10,000 and below;

(f)     all the cases referred to in the chart adduced by the Respondent are in relation to indecency of a sexual nature; apart from two cases in which fine of $100,000 was imposed, almost half of the convictions attracted a fine of $5,000 and the average fine was just over $10,000;

(g)    while accepting the general principle in relation to a “persistent offender”, the article in question was not of a type which called for the largest fine;

Decision on the appropriate fine to be imposed

7.Since there is no allegation that the reporter had “engineered” the incident, I have to accept that the report was factual. Though I accept there is a legitimate public interest in publishing the article, the publishing of the photographs are indeed unnecessary. I have looked at the photographs myself. While they are of an indecent, offensive and disturbing nature, I do not agree with the learned Magistrate’s view that they were of a “highly” disturbing nature. I find the graphic description in words more disturbing.

8.The Appellant is not a first offender. It has 13 similar previous convictions though this is the first time the offending article involved cruelty to animals. In most cases the indecency involved is of a sexual nature (as demonstrated by the cases referred to in the chart and the Appellant’s previous convictions). That is not to say that indecency involving cruelty to animals should be treated differently or less severely. The offence convicted was the publishing of an indecent article without warning notice. The Appellant is clearly a repeated offender. Although the fine imposed on the last occasions was $50,000 and it would appear that such a fine did not serve as a deterrence to the Appellant, the nature of the indecency, as one can see from the title of the article “一週網料 恐怖人肉屠房” appeared to be much more disturbing than the present article.

9.Having considered all that is said on the Appellant’s behalf in mitigation, the fact that it is a repeated offender, and the nature and extent of indecency involved, I am of the view that a fine of $25,000 is appropriate.

10.For these reasons the appeal against sentence is allowed. The fine of $250,000 is quashed and substituted by a fine of $25,000.

Ms. Sally Yam, Government Counsel for HKSAR

Mr. Peter Duncan SC leading Mr. Richard Wong instructed by Deacons for the Appellant.