HKSAR v. Kwan Fun Hung

HCMA 561/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 561 OF 2011

(ON APPEAL FROM ESCC 2985/2011)

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BETWEEN

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Before: Deputy High Court Judge E Toh

Date of Hearing: 28 September 2011

Date of Judgment: 28 September 2011

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate’s Court to two counts, one of “publishing an obscene article” and the second count being “possession of obscene article for the purpose of publication”.

2.In the afternoon of 16 June 2011, the Appellant had served a police officer and the police officer had given the Appellant HK$100 marked money to purchase 5 obscene DVDs.

3.This happened in a building in Hennessy Road, Wanchai.  After the purchase, the police raided the premises and seized over 3,000 obscene DVDs.

4.The learned Magistrate considered the mitigation advanced on behalf of the Appellant and also considered the judgment of the court in HKSAR v CHAN Mau-ling [2004] 2 HKLRD 48 where the Court of Appeal had held that in the absence of exceptional mitigating factors, a starting point of 9-12 months’ imprisonment was appropriate.

5.The level of obscenity in the exhibit seized were found to be close-up shots of sexual intercourse and oral sex, and the sexual organs of the actors and actresses could be seen. 

6.The learned Magistrate taking into account the degree of obscenity together with the quantity of discs, therefore decided that a reasonable starting point would be 6 months’ imprisonment for the 1^st charge and 12 months’ imprisonment for the 2^nd charge.

7.The sentences were reduced because of the Appellant’s plea and he was given full credit of ⅓ off, and the learned Magistrate had arrived at a sentence of 4 months’ imprisonment for the 1^st charge and 8 months’ imprisonment for the 2^nd charge and both sentences to be served concurrently.

8.In the Appellant’s case, he has 21 previous convictions involving 24 offences and 4 of them were for copyright offences.  As Mr Hui for the Respondent pointed out he was last sentenced to a total of 12 months on 4 August 2010, therefore he committed the present offence shortly after he was released from prison.

9.Although it is also correct that the Appellant said this is the first time that he has committed this type of offence, this type of offences are unfortunately quite prevalent in Hong Kong.

10.From the cases, that have been submitted by Mr Hui, it is clear that the learned Magistrate was right to observe that the starting point of sentences do range between 9 to 12 months and in a lot of cases the Appellants were not only sentenced to imprisonment but were also fined.

11.I have considered everything said by the Appellant about his family circumstance and his remorse, but the principle is that the court sitting on appeal would only interfere with the learned Magistrate’s sentence if it was manifestly excessive or wrong in principle.

12.The learned Magistrate in this case was neither wrong in principle nor was manifestly excessive in his sentences and therefore the appeal is dismissed.

Mr Martin S T Hui, SADPP(Ag) of Department of Justice, for the Respondent

The Appellant in person