HKSAR v. Lai for Hei

(English Translation)
HCMA 159/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 159 OF 2000

(On appeal from NKCC 2905 of 1999)

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BETWEEN

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Before: Hon Chan CJHC in Court

Date of Hearing: 26 April 2000

Date of Judgment: 26 April 2000

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J U D G M E N T

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1. The appellant pleaded guilty in the North Kowloon Magistracy to a charge of possession of obscene article for the purpose of publication, contrary to s. 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390, and was sentenced to 10 months’ imprisonment.  At that time, the appellant had been sentenced to 4 months’ imprisonment in another case.  The magistrate ordered the two sentences to run consecutively.  The appellant now appeals against sentence.

2. On the day of the offence, 13 December 1999, the appellant was shouting loudly inside a shop at Ho King Commercial Centre, Fa Yuen Street to promote the sale of obscene video compact discs (VCDs).  A plain-clothed police officer, posing as a customer, asked the appellant about the obscenity of the VCDs.  The appellant indicated that they were all “Category 4” VCDs and he urged the police officer to make purchase at once.  Then the police officer revealed his identity and arrested the appellant.  The shop was subsequently searched and 618 obscene VCDs in total were found inside the shop.

3. The magistrate considered that offences of this kind were prevalent in Mongkok and Shamshuipo.  The precedents showed that the usual starting point was 12 months.  Taking into account the medium level of obscenity of the VCDs involved, the prevalence of the offence and the deterrent effect of the sentence, the magistrate held that a higher starting point of 15 months was appropriate.  The appellant had 13 previous convictions, one of which was in respect of the same offence as the one in the present case. Receiving the usual one-third discount on account of his guilty plea, the appellant was in the end sentenced to 10 months’ imprisonment.

4. Mr. Chan, counsel for the appellant, raised two grounds of appeal.  Firstly, the starting point of 15 months as adopted by the magistrate was manifestly excessive.  Secondly, the magistrate failed to consider the fact that the appellant was serving a sentence of 4 months’ imprisonment and therefore failed to have due regard to the totality principle.

5. The precedents show that the sentencing considerations for this type of offence include: the number of VCDs involved, the level of obscenity, the circumstances and method of sale, and the prevalence and severity of this kind of offence in the area.  The punishment on this type of offence is mainly directed at the obscenity of the discs, rather than the sale of the discs; the law aims to eradicate, and not simply to control, the sale of obscene discs.  Therefore, all the precedents are unanimous in pointing out that the objective of the legislation can only be achieved by imposing sentences which are at once punitive and deterrent.

6. I have been referred to 9 authorities by the parties.  Between July and December 1998, there were Tsang Biu-sum, HCMA 405, 406/1998 and Mau Ting-sang, HCMA 1023, 1024/1998, in each of which the High Court passed a 9-month custodial sentence.  In January 1999, in Chan Kiu-hung, HCMA 1025, 1026/1998, the court increased the starting point to 12 months.   Later in the same month, the court adopted this starting point in Poon Leung-tak, HCMA 1195/1998.  In March 1999, in Ngai Yuk-ming, HCMA 1255/1998, the court sentenced a young person aged 19 to the training centre, with the term to be served not significantly different from that imposed in previous cases.  Also in March 1999, in Poon Ki-chiu, HCMA 209/1999, the court once again adopted a starting point of 12 months.  Of these cases, for example, Chan Kiu-hung involved more than 1,000 VCDs; Poon Leung-tak involved almost 1,500 discs; and Poon Ki-chiu involved more than 600 discs.  In October 1999, there was Yu Man-lung, HCMA 704/1999, in which the defendant faced three charges involving 300 to 2,000 VCDs.  The court also adopted a starting point of 12 months.  By the end of December last year, in Chan Yuet-ming, the court had adopted a starting point of 15 months.  Early this year, in Chung Yun-hung HCMA 1243/1999, the court also adopted a starting point of 15 months.  It can therefore be seen that between 1998 and early this year, the starting point had increased from 9 months to 12 months and then to 15 months.  These offences were committed mainly in the North Kowloon district.  As a matter of fact, the offence of selling obscene VCDs in this particular district has recently become increasingly prevalent.  In Chung Yun-hung, the judge pointed out that up till the end of May 1999 about 20 cases of this nature were being dealt with by Court 1 of the North Kowloon Magistracy each month, but the number went up drastically to about 80 cases by the end of July.  It is apparent that this type of offence is proliferating at an astonishing rate in the North Kowloon district.

7. In an appeal case last year, the Court of Appeal held that the trial judge should rule on the obscenity of the VCDs in order to arrive at a more appropriate sentence.  Due to constraints on resources and time, it would be impossible for police officers and magistrates to examine the contents of the VCDs seized one by one so as to rule on their obscenity.  Therefore, there has been a change in prosecution practice.  Defendants are no longer charged with possessing or selling all the VCDs seized in the shop; instead, they are simply charged with possessing or selling VCDs which are proved to be obscene.  All other VCDs seized would then be submitted before the court for reference only.

8. On the facts of the present case, the VCDs were of a medium level of obscenity, and the appellant shouted loudly to potential customers and openly promoted the sale of the discs.  The magistrate therefore adopted a starting point of 15 months.

9. In view of the facts of this case and the prevalence of this kind of offence in the North Kowloon district, a starting point of 15 months was in my view eminently appropriate.  Besides, given that the appellant had previously been convicted of a similar offence, the starting point as it was could not be considered erroneous.  Nor was it improper to impose, as the magistrate did, a sentence of 10 months, which had taken into account the one-third reduction to which the appellant was entitled by reason of his guilty plea.

10. Turning to the second ground of appeal, the court record reveals that the appellant was sentenced to 4 months’ imprisonment on 29 December 1999 for another offence, namely possession of a dangerous drug.  He committed that offence on 6 October 1999 and the present offence was committed on 13 October 1999.  The issue here is not whether the two cases should have been dealt with at the same time by the magistrate; rather, the fact that the appellant committed this offence while he was on bail for the drug case did constitute an aggravating factor.  And as the two cases are different in nature, a consecutive sentence is inevitable.  In view of the facts of this case, it was appropriate for the magistrate to order a wholly consecutive sentence.  Accordingly, there is nothing in the appellant’s two grounds of appeal and the appeal falls to be dismissed.

Mr. Chan Siu Ming, instructed by the Legal Aid Department, for the appellant.

Ms. Rosaline Leung, Senior Government Counsel, for the respondent.

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