HKSAR v. Lam Sze Mui

HCMA862/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.862 OF 2006

(On Appeal From ESS 13026-7 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 21 November 2006

Date of Judgment : 21 November 2006

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J U D G M E N T

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1.The appellant pleaded guilty to two summonses : (1) publishing an indecent video disc “not sealed in completely opaque wrapper” as required under section 24 of the Control of Obscene and Indecent Articles Ordinance; (2) possessing 20 such video discs.  He was sentenced to 4 months on each of the summons to run concurrently, but consecutive to the sentence he was already serving.  

2.The appellant sold the disc referred to in the 1^st summons to an officer of the Television and Entertaining Licensing Authority during a control buy operation.  Upon subsequent inspection of the discs in the premises, 20 video discs were found to be indecent and not “sealed in completely opaque wrappers”.

Grounds of appeal

3.The following grounds are advanced :

(1)	the magistrate failed in taking into sufficient account that out of the total of 2,525 video discs in the appellant’s possession, only 21 discs were not wrapped as required by the Ordinance;
(2)	the magistrate, by adopting a starting point of 6 months’ imprisonment, failed to distinguish between the less serious nature of the s. 24 offence under which the present summonses were brought where the maximum term of imprisonment is 12 months, from s. 21 offences, where the maximum term is 3 years;
(3)	the 4 months’ imprisonment is thus manifestly excessive in the circumstances.

Respondent’s reply

4.Counsel for the respondent submitted that the Court of Appeal, in the case of HKSAR v. Chan Mau Lung [2003] 4 HKC 202, had given full consideration before laying down a tariff sentence.  Thus, a mathematical formula, as suggested by the appellant’s counsel, by comparing the statutory maximum between s. 24 and s. 21 offences and the usual starting point for the latter in advancing his argument as to the appropriate starting point to be adopted in the present case, is not just inappropriate but rather an oversimplified approach.

5.Given the flourishing nature of this trade and its prevalence, counsel for the respondent submitted that a deterrent sentence was not wrong in principle.  Further, the appellant had two previous similar convictions back in 2003 for which he was sentenced to 10 months’ imprisonment.  It is clear that those sentences did not deter him from engaging himself in trade of similar nature.  It was submitted that the 4 months’ imprisonment was not manifestly excessive.

My judgment

6.Each offence under s. 24 of the Ordinance is punishable by a maximum of $400,000 fine and 12 month’s imprisonment for a first conviction.  A second or subsequent conviction is subject to a maximum fine of $800,000 and 12 month’s imprisonment.

7.The argument of counsel for the appellant is this.  The Court of Appeal in Chan Mau Lung set down a tariff of 9 to 12 months starting point for first offenders of s. 21 offences.  The maximum term of imprisonment under s. 21 being three times of that of s. 24, a first offender of s. 24 offences should be looking at a maximum starting point of 4 months’ imprisonment.  Counsel whilst recognizing that this is a purely mathematical approach submits that this approach endeavors to strike a fair balance and proportionality between different types of offences under the Ordinance. 

8.At first sight that argument seems to have some force.  However, that argument lost sight of the fact that, even for offences of the like, guidelines are not immutable.  Starting points could be adjusted upwards or downwards in the presence of aggravating or mitigating features.  That would include, as set out in the case of Chan Mau Lung, quantity of the material, audience targeted, degree of depravity and repulsiveness.  Prevalence of the offence, whether the trade was carried out in a notorious spot, whether an offender had previous convictions of the like are all factors to be taken into account and the sentencing judge has a wide range of discretion.  A mathematical comparison as advanced by counsel for the appellant of offences under different sections is not appropriate.

9.The magistrate pointed out in his Statement of Findings that the offences “took place in a building which is notorious for housing businesses which offend as to obscene, indecent and/or copyright breaching articles.  On at least a weekly if not daily basis, the Eastern Magistracy deals with several such cases.”

10.The magistrate then noted that the appellant had 33 appearances before courts with 47 previous convictions.  Since year 2000, he had engaged himself in trades offending the Copyright Ordinance as well as s. 21 offences.  For the latter, he was sentenced to a total of 14 months’ imprisonment on 25 April 2003.  At the time of the present sentence, he was still serving 6 months’ imprisonment in relation to an offence of “Using a false Instrument” from 24 May 2006.  I have taken the liberty to call up the court files of the two s. 21 cases and I have the benefit of looking at the charge sheets.  The first happened on 27 March 2003 and the second happened on 17 April 2003.

11.Whilst on this occasion, the charges were brought under s. 24, it is clear that previous sentences had not deterred him from committing further offences of the like.  A starting point of 6 months as adopted by the magistrate cannot be faulted.  This appeal is dismissed and I affirm the sentences.

Miss Bianca Cheng, SGC of the Department of Justice, for HKSAR

Mr Burkett Francis Martin Thomas, instructed by Director of Legal Aid, for the Appellant