HKSAR v. Wong Pan

HCMA420/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.420 OF 2009

(ON APPEAL FROM EASTERN MAGISTRACY NO.1673 OF 2009)

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BETWEEN

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Before: Deputy High Court Judge Geiser

Dates of Hearing:  10 July 2009

Date of Judgment:  10 July 2009

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J U D G M E N T

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1.On 8 April 2009 the Appellant appeared before a magistrate sitting at Eastern Magistracy and pleaded guilty to two charges: the first being an offence of publishing an obscene article, contrary to s.21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390, the Laws of Hong Kong; the second, an offence of possession of obscene articles for the purpose of publication, contrary to s.21(1)(b) of the same ordinance.

2.On the 1st charge the Appellant was sentenced to 4 months’ imprisonment and a fine of $5,000, and on the 2nd charge he was sentenced to 8 months’ imprisonment and fined $10,000. The periods of imprisonment on each charge were ordered to run concurrently with each other. By Notice of Appeal filed on 21 April 2009 the Appellant appeals against the sentences on the grounds that the sentences imposed were too severe.

3.The facts giving rise to the offences which the Appellant admitted in the court below were fairly straightforward and involved an undercover TELA agent visiting shop premises at Oriental 188 Shopping Arcade in Wan Chai. There he was greeted by the Appellant, who served him for the sale of four obscene DVDs, for which the undercover agent paid $100 in marked money. This was the 1st charge. A subsequent raid on the premises by the police armed with a search warrant revealed 3,575 obscene DVDs, the subject matter of the 2nd charge.

4.The police viewed the seized DVDs and found them to contain close-up shots of sexual intercourse, oral sex and deviant sexual activity involving bondage. The learned magistrate, in her reasons for sentence, indicated that she had viewed some still photographs of the images portrayed in the DVDs and found the level of obscenity depicted to be at the middle range of the scale.

5.Although the Appellant had previous convictions, these were his first convictions for offences involving possession of obscene articles.

6.Again in her reasons for sentence, the learned magistrate noted the prevalence of these sort of offences and the lucrative profits that were made as a result. Accordingly, she adopted a starting point of 6 months’ imprisonment on the 1st charge and 12 months on the 2nd, giving the Appellant the full one-third discount on each charge to reflect his plea of guilty. She also imposed fines to reflect the fact that , as she had said in her reasons for sentence, lucrative profits were made from this sort of business.

7.The Appellant this morning complains that the learned magistrate imposed financial penalties in addition to custodial sentences. In my view, there is a clear need for courts to continue to be vigilant and impose immediate custodial sentences, coupled with heavy financial penalties on those who choose to embark on these type of illegal enterprise.

8.Lugar-Mawson J, in HKSAR v Tang Keung Cheung, HCMA937/2000, said this:

“There is a clear need for a firm response against those who peddle in pornographic VCDs. The message needs to be sent out to offenders and their legal advisers that stern penalties involving imprisonment for meaningful periods and fines will be imposed.”

9.The sentences imposed by the learned magistrate cannot, in the particular circumstances of this case, be said to be manifestly excessive. I confirm the sentences imposed and dismiss the appeal.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

Appellant, Wong Pan, in person