HKSAR v. Lee Pui Lam and Another

HCMA1050/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1050 OF 1997

(On appeal from ESCC 2205 of 1997)

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BETWEEN

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Before: Hon Yeung J in Court

Date of Hearing: 12 December 1997

Date of Judgment: 12 December 1997

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JUDGMENT

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1.  As this case involves important principles of sentencing, it is necessary for me to give a more detailed judgment on the several points raised in the appeal.

2.  The first appellant, Lee Pui Lam, pleaded guilty in the Eastern Magistracy to the first charge of possession of obscene articles, namely 100 video compact discs, for the purpose of publication and the second charge of publishing an obscene video compact disc. He was sentenced to 4 months’ imprisonment on each charge, and the two sentences were to run concurrently. The magistrate ordered the above sentence to run consecutively to the 6 months’ imprisonment to which he had already been sentenced in respect of other offences. The magistrate also ordered the first appellant to pay $30,000 costs, which were to be deducted from his bail money. The second appellant, Cheung Ho Sang, having pleaded guilty to the second charge of publishing an obscene video compact disc, was sentenced to 6 months’ imprisonment. Both appellants now appeal against sentence.

3.  The facts of the case revealed that both appellants worked at Shop 255, 298 Computer Zone, Hennessy Road. At the material time, the second appellant was shouting outside the shop for sale of Category IV video compact discs while the first appellant was responsible for receiving payments inside the shop. Subsequently, the police searched the shop and found 100 obscene video compact discs and $420 being business proceeds.

4.  The contents of the video compact discs in question comprised male and female sexual intercourse, oral sex, buggery and homosexual acts. The magistrate had also viewed some of these video compact discs before passing sentence. Although the contents of these obscene video compact discs did not feature children, a high degree of obscenity was involved. Both appellants have a number of previous convictions for offences of a different nature. To serve deterrent purposes and in order to stop obscene video compact discs from becoming prevalent, there is nothing improper in imposing an immediate custodial sentence on those convicted of the offence in question. Such a sentencing approach also finds support in case law. As far as the first appellant is concerned, he had pleaded guilty to two charges, and he was sentenced to 4 months’ imprisonment for each charge, with the two sentences to run concurrently. I do not consider the sentence excessive. Having regard to the fact that he has previously been sentenced for another offence of a different nature and that he is serving that sentence, it is in my view appropriate to order the sentence in the present case to run consecutively to that which the first appellant is serving.

5.  However, I have grave reservations about the magistrate’s order requiring the first appellant to pay $30,000 costs. The first appellant had pleaded guilty to the offences. Basically, there is no reason for requiring him to pay a huge sum of costs. Generally speaking, where a defendant is sentenced to imprisonment, it is not necessary for the court to impose further monetary punishment on him save for the purpose of depriving him of any profit from the offence. Even if it is intended to confiscate the proceeds obtained by the defendant from the offence, the punishment should take the form of a fine instead of an order to pay a huge amount of costs. In the present case, as the prosecution had not applied for costs and the magistrate had never considered and assessed the costs incurred by the prosecution, there was no legal or factual basis for the order requiring the appellant to pay $30,000 costs. Furthermore, there is nothing to show that the first appellant had obtained monetary gain of as much as $30,000 from the offence. On the facts, the amount of business proceeds found at the shop at the material time was merely $420. 

6.  I must also add that, although a judge is free to exercise his discretion to impose an appropriate sentence on a convicted defendant, it does not mean that he may impose a sentence arbitrarily. He must act in accordance with the established law and sentencing principles, and failure to do so will only serve to undermine the legal system, pervert the law and create injustice.

7.  The transcript of the proceedings has recorded the following conversation between the magistrate and the first appellant:

“Court: Each of you has $30,000 bail money.

D1: (I) borrowed it.

Court: It was given to you by the boss, wasn’t it?

D1: (I) really borrowed it. It was not given by the boss.

Court: From whom did you borrow it?

D1: (I) borrowed it from Brother Sum (transliteration).

Court: (You) ask Brother Sum to come and get it.

D1: Even the bail sheet was given to him. It is not with me.

Court: Pardon?

D1: The bail sheet was given to Brother Sum for his custody.

Court: Okay. No need. Ask him to come and apply for it.”

8.  I appreciate what the magistrate had in mind. He apparently thought that the appellant was being exploited by a boss behind the scene. He also suspected that this boss behind the scene provided the bail money for the appellant. With a view to achieving the purpose of punishing this boss behind the scene, the magistrate ordered that the $30,000 bail money be confiscated. However, a judge may only punish convicted offenders. He should not, and absolutely cannot, attempt to punish any other person who has not been prosecuted or convicted and who has never been given an opportunity to make submissions before the court to refute all allegations against him so as to safeguard his own interest. Any punishment imposed on such a person, whether directly or indirectly, would be in breach of natural justice and would violate legal principles and cause injustice. The so-called boss behind the scene can only be punished following normal legal procedure, which means that he has to be lawfully arrested by law enforcement agencies, prosecuted and convicted by the court before he can be punished. Any punishment circumventing such procedure would pervert the law and cause injustice. Furthermore, the idea that the appellant’s bail money had come from a boss behind the scene was pure conjecture on the part of the magistrate, and it is unjust to impose a punishment on the basis of conjecture.  The magistrate had erred in principle in ordering the first appellant to pay costs of $30,000. The order must accordingly be set aside.

9.  Turning to the application of the second appellant, the transcript of the proceedings has detailed the following conversation between the magistrate and the second appellant:

“Court: What should be done?

D2: Thank you very much, Your Worship. I have thought the matter over carefully in the past 21 days. I know I was wrong and I hope you will give me a chance. If you give me a chance, I will treasure it very much this time.

Court: You have pleaded guilty. Four months’ imprisonment and $30,000 costs, to be deducted from the bail money. The bail money came from your boss, didn’t it?

D2: No, it’s my father’s.

Court: Then you’ll serve a longer sentence.

D2: Pardon?

Court: You’ll serve a longer sentence. I won’t punish you by requiring you to pay costs. Six months’ imprisonment.”

10.  The record shows that the magistrate initially sentenced the second appellant to 4 months’ imprisonment. However, because he was unwilling to pay the $30,000 costs and said that the sum of money belonged to his father, the magistrate increased the term of imprisonment from 4 months to 6 months. Firstly, the second appellant had pleaded guilty, and absent any application by the prosecution or any information showing the amount of costs incurred by the prosecution, there was basically nothing to justify an order requiring the second appellant to pay $30,000 costs. I have mentioned above what the magistrate had in mind, and as can be seen, this was also what he had in mind when he dealt with the case of the second appellant. The magistrate should not have increased the term from 4 months to 6 months for the reason that the appellant was unwilling to pay costs. In this regard, the magistrate had also erred in principle. 

11.  Another point which I should mention is: the first appellant pleaded guilty to two charges, the first of which involved 100 obscene video compact discs, and he was sentenced to 4 months’ imprisonment; the second appellant pleaded guilty to one charge which involved only one obscene video compact disc, but he was sentenced to 6 months’ imprisonment, which was longer than that of the first appellant. I do not consider this appropriate. The court has to ensure that its decision does not create in the defendant a justifiable sense of grievance. In the present case, in light of the fact that the second appellant was only facing one charge which only involved one obscene video compact disc, a sentence of 6 months’ imprisonment would, objectively speaking, constitute injustice and create in the second appellant a justifiable sense of grievance. Accordingly, it is in my view necessary to reduce the second appellant’s term of imprisonment.

12.  Having considered the nature of the case, the circumstances of the offence and the background of the second appellant, I take the view that an appropriate sentence is 3 months’ imprisonment. It is necessary for the court to convey to the public a clear message that, for offences involving obscene video compact disc, an immediate custodial sentence will be imposed on the offender for deterrence purpose. In the present case, both appellants’ appeals against sentence are allowed. The order requiring the first appellant to pay $30,000 costs is set aside and the costs already paid shall be returned to him. The term of imprisonment imposed on the second appellant is reduced from 6 months to 3 months.    

Mr Andy Hung, instructed by the Legal Aid Department, for the two appellants

Mr Albert Wong, Senior Government Counsel, for the HKSAR

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor