HKSAR v. Yau Yuk Sun

HCMA82/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 82 OF 2009

(ON APPEAL FROM ESCC 6295 OF 2008)

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Before: Deputy High Court Judge Lugar-Mawson in Court

Date of Hearing: 6 March 2009

Date of Judgment: 6 March 2009

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J U D G M E N T

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1.The Appellant, Yau Yuk Sun, who is aged 51, was convicted on his own plea of one count of publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 and one count of possession of an obscene article for the purpose of publication, contrary to section 21(1)(b) of the same ordinance.  He was sentenced to 14 months’ imprisonment for both offences to run concurrently.  He now appeals against sentence.

2.The facts are that, on 9 December 2008, an officer of the Television and Entertainment Licensing Authority purchased 4 obscene DVDs from the Appellant for $100.  Thereafter police officers raided the premises and seized a further 1,825 obscene DVDs.  Viewing showed explicit sexual activity, as well as deviant sexual activity involving bondage and burning with molten wax.  Special effects were used, but they were insufficient to obscure the genitalia.  Under caution, the Appellant admitted the offences.

3.The Appellant has 45 previous convictions, with 17 being similar in nature.  His last conviction for a similar offence was in August 2008, for which he was sentenced to 3 months’ imprisonment.

4.It was submitted in mitigation that the Appellant committed the offences as he needed money to renew his travel documents.

5.In sentencing the Appellant, the magistrate said:

“  In sentencing the defendant I could not overlook the fact that this was his 18^th conviction for such offences.  He was a persistent and professional purveyor of pornography.  This offence was aggravated by the presence of deviant sexual practices.  The number of items seized whilst not being of the highest was substantial, almost 2000 and whilst some special effects were applied they were of little use.  I resolved that a substantial and immediate sentence of imprisonment was appropriate. …”

The magistrate took an overall starting point of 21 months before reducing it to 14 months to reflect the guilty plea.

6.In the Appellant’s Notice of Appeal no specific ground of appeal against sentence is pleaded.  Before me, he says the sentences are too severe as these were only “category 3” videos, not “category 4” and that there were “squares” over the genitalia.

7.The maximum sentence for both offences is imprisonment for 3 years and a fine of $1 million.  There are no sentencing guidelines.  There are, however, a number of appellate decisions that show how offenders who have committed these offences have been dealt with.  I refer to just three of them.  

8.In HKSAR v. Chan Mau Lung [2003] 4 HKC 202 the appellant was convicted after trial of one count of possession of 98 obscene VCDs for the purpose of publication.  The magistrate took a starting point of 18 months’ imprisonment and reduced that to 15 months’ imprisonment to reflect the small-scale nature of the operation (sale from a make-shift stall) and the appellant’s admission to a significant part of the prosecution case.  The appellant had 46 previous convictions, one in 2000 was for a similar offence.  The High Court judge dismissed the appeal against conviction but referred the question of sentence to the Court of Appeal for consideration because of “social changes” that had occurred in this area.  The Court of Appeal declined to issue sentencing guidelines, saying that the circumstances pertaining to these offences vary infinitely.  However, the Court of Appeal agreed that, generally, an immediate custodial sentence is required as a deterrent and, in the absence of exceptional mitigating factors, a sentence of 9 to 12 months is the appropriate starting point.  The quantity of the obscene articles and the degree of obscenity shown in them are factors which could result in an upward adjustment of the starting point.  Repeat offenders should receive higher sentences.  The sentence was reduced to one of 12 months’ imprisonment.

9.In HKSAR v. Siu Chee Keung, HCMA 1050/2005 (unreported), the appellant was convicted on his own plea of 2 separate offences of publication of 5 obscene DVDs and one offence of possession of 1,838 obscene DVDs.  It was said on appeal that an aggregate sentence of 18 months’ imprisonment was well within the current sentencing range.

10.In a more recent case, HKSAR v. Hui Chi Ming, HCMA 270/2008 (unreported), the judge said that, while the magistrate did not refer to the prevalence of the offence, the courts cannot ignore the fact that these offences remain prevalent years after the law was amended to provide for longer sentences.  The judge emphasised the need to increase the starting point sentence if the defendant were a persistent offender who had not been deterred by his previous sentences.  In that case the appellant was found in possession of 2,257 obscene DVDs offered for sale in a shop of which he was the person-in-charge.  The DVDs depicted sexual intercourse, including oral sex, between males and females.  Male and female genitalia could be clearly seen.  The appellant had 51 convictions, 8 of them related to obscene articles.  On appeal, his sentence was reduced from 20 months’ imprisonment to 16 months’ imprisonment.

11.There are the following aggravating factors in this present case; the quantity of obscene DVDs involved is substantial, 1,825; the Appellant was found selling the obscene DVDs inside a shop; the degree of obscenity of the DVDs appears to be high — it would appear to be higher than the activities portrayed in Hui Chi Ming; and the Appellant has 17 previous convictions for similar offences and was last convicted of a similar offence only a few months before committing the offences giving rise to this case.

12.The overall sentence of 14 months’ imprisonment passed on the Appellant after a guilty plea is clearly appropriate.  It certainly is not manifestly excessive.  The Appellant’s appeal against sentence is dismissed.

Mr Cheng Hoi Chung, Raymond, SPP of the Department of Justice,  for HKSAR

The Appellant, in person, present