HKSAR v. Cheng Sum

HCMA613/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.613 OF 2005

(ON APPEAL FROM ESCC 2564 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 24 August 2005

Date of Judgment : 24 August 2005

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J U D G M E N T

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1.The appellant pleaded guilty to one count of “Publishing” and one count of “Possession of Obscene Articles for the Purpose of Publication”, contrary to sections 21(1)(a) and 21(1)(b) of the Obscene and Indecent Articles Ordinance, Cap.390.  He was sentenced to 12 months’ imprisonment for each to run concurrently.  In addition, two separate fines of $10,000 were ordered in default of which another month’s imprisonment were to be imposed on each count, making a total of 14 months’ imprisonment.  The appellant appeals against these sentences.  His ground is that it is not fair for the magistrate to fine as well imprison him.

2.The facts as admitted by the appellant were as follows :

“At 1955 hours on 2005-06-12, PW1 was in plainclothes duty and conducted an anti-obscene articles operation at Oriental 188 Shopping Arcade in Wanchai.  PW1 saw Deft sitting in the cashier counter inside the Shop 215 (A/L) near the shop entrance.  PW1 heard the Deft say that ‘One hundred dollar for four DVDs, guarantee for change if defected’.  PW1 then picked four pieces of obscene DVDs (E3) from the display rack and paid HK$100- marked money (E2) to PW1.

At 2005 hours on the same day, PW2 led the police party and executed a search warrant (E1) at A/L.  Deft was found sitting in the cashier counter and the marked money (E2) was recovered in the cashier drawer.  During a subsequent search conducted by PW4, a total of 2,290 pieces of DVDs (E4) of obscene articles were seized as scenes of oral sex, explicit sexual acts between males & females and particular focus on their sexual organs were found displayed on their packing.  PW4 also seized some business money HK$240 (E5), sales record (E6) and other paraphernalia for the business (E7-E11) inside the shop.  PW4 drew a sketch showing the layout of the Shop (E12).

At 2007 hours on the same day, PW3 declared arrest to Deft.  Under caution, the Deft admitted selling the obscene DVDs and collecting money from customers.  However, he refused to say anything as to the obscene DVDs found at the shop (E13).  Random selection was made from E3 and E4 for viewing, scenes of oral sex, explicit sexual acts between males and females and close up on sexual organs were found.”

3.In sentencing the appellant the magistrate remarked that the offences were committed at a venue notorious for such activities.  Noting that the appellant had 44 previous convictions, eight similar, he classified the appellant as a persistent offender and adopted 18 months as his starting points.  He made it clear that he had made enquiries as to the appellant’s ability to pay and that he was satisfied beyond reasonable doubt that the bail money was available to the appellant to dispose of as he wished.

4.On the strength of HKSAR v. Tseung Lung-kan, HCMA723 and 724/2001 and HKSAR v. Lee Chi-keung, HCMA514/2004, both of which had facts comparable to ours, I can find no ground for criticism of the present sentences.  It is common for both fines and imprisonment be imposed in this type of cases.  The appeal is without merit.  It is dismissed.

Mr Paul Ho, SGC of the Department of Justice, for the Respondent

Appellant in person