HKSAR v. SUEN SHUN WING

HCMA 1248/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1248 OF 1999

(ON APPEAL FROM NKCC 7065 OF 1999)

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J U D G M E N T

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Hon Woo JA :

1. The Appellant was convicted on his own plea by magistrate Mr Mierczak of two charges, namely,

(1) 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 in that on 2 December 1999 at Shop 212, 2nd Floor, Sino Centre, Nos. 582-592, Nathan Road, Kowloon, Hong Kong, he possessed for the purpose of publication obscene articles, being 3392 obscene video compact discs ("VCDs"); and

(2) display of indecent matter, contrary to s 23(1) of the same Ordinance, in that on the same day and at the same place, he publicly displayed indecent matters, being 3392 pieces of obscene VCD paper covers.

2. The Magistrate adopted a starting point of two years' imprisonment for charge (1) and one of nine months' imprisonment for charge (2). Taking into account the guilty plea, he gave the Appellant the usual one-third reduction and passed a sentence of 16 months of imprisonment in respect of charge (1) and six months' imprisonment on charge (2). The sentences were ordered to run concurrently, making a total of 16 months' imprisonment.

3. It is against these sentences that the Appellant appeals.

4. Mr Michell-Heggs, on behalf of the Appellant, argues three substantive grounds of appeal to support his submission that the sentences were manifestly excessive or wrong in principle. He complains that the Magistrate failed to take sufficient account of the fact that despite the Appellant's 13 previous criminal records, there was no previous conviction of a similar nature. He also argues that the sentences should "not be set on the scale according to the mathematics of quantity" of the VCDs and display covers involved, but should rather be "according to the overall criminality" of the offences. Another ground is that the Magistrate appears to have overlooked the need to examine and assess the nature of the obscene material himself, thereby assuming the degree of obscenity and depravity in fact involved and sentencing the Appellant on a level of culpability which may not be appropriate.

5. In recent years, there have been a number of cases that involved sentencing on the possession charge, either referred to by counsel in their submissions or gleaned by me in the brief research that I have done in preparation for the hearing of this case. I will summarise them below.

6. In The Queen v LAM Wing-ching [1991] 1 HKLR 217, the appellant pleaded guilty to possession of 77 video tapes containing material of the most obscene kind, namely, simulated rape, intercourse with animals, homosexuality and group sex. He was 18 years of age and had a clear record, and he did not own the shop in which the obscene articles were found. After referring to AG v TANG King-ming [1986] HKLR 210, CA, Bewley J said that the proper sentence in bad cases such as the one before him was six months' imprisonment. However, in view of the age of the appellant, the judge imposed a Training Centre Order on him.

7. In The Queen v LO Chuen, MA 856/96 (15 August 1996, unreported), the appellant pleaded guilty to possessing 54 video tapes showing sexual intercourse between men and women as well as oral sex. There was a video in the shop so that customers who wanted a preview could watch. Having considered the two authorities referred to above, Stock J reduced the four months' imprisonment imposed on the appellant to three months but affirmed the activation of a suspended sentence of four months' imprisonment ordered by the magistrate for a similar previous conviction of the appellant. The judge ordered two months of the three-month term to run consecutively to the activated sentence, so that the appellant had to serve a total of six months.

8. In HKSAR v LAU Pak-ying, MA 636/97 and 637/97 (28 August 1997, unreported), the appellant pleaded guilty in two separate cases to one charge of possession of obscene article for the purpose of publication and one charge of publishing an obscene article. He admitted selling obscene VCDs and there was a large but unspecified number of obscene VCDs in the shop on both occasions. The appellant had 17 previous convictions but apparently none was similar. The magistrate sentenced him to six months' imprisonment and fined him $20,000 for the charges on each occasion, but ordered the prison terms to run concurrently. In effect, the appellant was to serve a total of six months and fined a total of $40,000. Yeung J took into account the financial capability of the appellant that the magistrate had failed to do and set aside the fines except for $1,500. There was no discussion of the degree of obscenity or depravity involved.

9. In HKSAR v NG Man Wah, MA 619/98 (24 September 1998, unreported), the appellant pleaded guilty to possession of obscene articles for the purpose of publication. The magistrate viewed two out of the 30 VCDs seized and commented that they were the most depraved material he thought he had ever seen, saying that the appellant's behaviour catered to the basic instincts of the sickest people within the community. After referring to TANG King-ming, LAM Wing-ching and AG v CHOW Kun Lap [1996] 2 HKC 600, CA, Nguyen J reduced the sentence of 12 months' imprisonment passed by the magistrate and substituted therefor a six months' term, while upholding the fine of $10,000.

10. HKSAR v LEUNG Siu Yin, MA 879/98 (30 September 1998, unreported) is another decision of Nguyen J. The appellant on his own plea was convicted of two charges of possession of obscene articles for the purpose of publication. The first charge involved 7,214 VCDs and 75 DVDs while the second charge another 1,247 VCDs and 3 DVDs. The obscene articles showed sexual intercourse and incidental activities connected with sexual intercourse. The magistrate adopted a starting point of six months for the first charge and reduced it to four months for the guilty plea. He took a starting point of three months for the second charge and reduced it to two months for the same reason and ordered the sentences to run concurrently. After referring to LAU Pak-ying, the judge opined that the magistrate did not give sufficient credit to the appellant for his previous good character and reduced the sentence for the first charge to one of three months' imprisonment.

11. In HKSAR v POON Leung Tak, MA 1195/98 (13 January 1999, unreported), the appellant was convicted on his own plea of one charge of publishing two obscene VCDs and another charge of possessing 1,433 VCDs for the purpose of publication. The VCDs contained material of the most disgusting nature, details of which were admitted by the appellant. The magistrate sentenced the appellant to six months' imprisonment for each offence, concurrent. Deputy Judge Jackson, as he then was, opined that at least 12 months' imprisonment for each charge as a starting point was appropriate and he increased the sentences to eight months in jail after reducing the starting point by one-third to take into account the guilty plea.

12. I also had on three previous occasions decided on sentencing appeals in respect of possession of obscene articles for the purpose of publication. In HKSAR v NGAI Yuk Ning, MA 1255/98 (18 March 1999, unreported), where the appellant was convicted after trial for possessing 354 VCDs at the bottom end of obscenity. He was 19 years of age and had three previous convictions, none of which was similar to the one before the magistrate. After considering HKSAR v TSANG Biu Sum, MA 405 & 406 of 1998 (Mayo JA, 23 July 1998, unreported), HKSAR v MAU Ting Sang, MA 1023 & 1024 of 1998 (Gall J, 15 December 1998, unreported), HKSAR v CHAN Kin Hung, MA 1025 & 1026 of 1998 (Deputy Judge Jackson, 8 January 1999, unreported) and the aforesaid POON Leung Tak, I considered that the sentence imposed by the magistrate, namely a Training Centre Order, was appropriate in all the circumstances.

13. In HKSAR v POON Ki Chiu, MA 209/99 (31 March 1999, unreported), the number of obscene VCDs involved was 429. While the magistrate adopted what I considered to be a proper starting point of 12 months' imprisonment, he failed to give a full usual one-third discount for the guilty plea. As a result, I set aside the sentence of nine months and substituted therefor a term of eight months.

14. In HKSAR v YIP Fuk Hung, MA 514/99 (15 October 1999, unreported), the appellant was found guilty after trial of publication of three obscene VCDs and possessing for the purpose of publication 482 obscene VCDs. He had a number of similar previous convictions. I considered that the concurrent sentences of eight months' imprisonment for each of the charges as lenient, bearing in mind that he had similar records.

15. Another decision on the subject was made by Beeson, J on 8 October 1999 in four cases of publishing obscene VCDs dealt with by her together, comprising HKSAR v YU Man Lung, MA 704/99 (unreported) and three other cases. Police officers bought a number of obscene VCDs, varying from three to five VCDs, from four shops, which formed the bases of the charges in the four cases. There were respectively 2,000, 1,000, 700 and 300 VCDs in the four shops which had not been seized by the police. The appellants all pleaded guilty. The appellants had admitted certain facts which described the VCDs as showing heterosexual intercourse, shots of male and female genitalia and heterosexual acts of cunnilingus and fellatio. The judge considered the authorities in some detail and came to the conclusion that the magistrate was entitled to adopt a starting point of 12 months' imprisonment. At p 10 of her judgment Beeson J said:

"A court in sentencing for such offences will take into account the number of articles, the level of obscenity, the circumstances of the sale, the sophistication of the method of sale and, the prevalence of the offence, as well as the usual factors personal to the offender that are generally relevant in sentencing. However, the main consideration for such sentences is deterrence, not just for the offender before the court, but for all those others who find this lucrative trade, even at its fringes, so attractive."

16. Beeson J's statement encapsulates the effect of all the above authorities on the subject. Apart from the fact that the sentences imposed by Nguyen J seem to be on the low side, but those were passed in September 1998, I only wish to add that the personal factors of the offender should be read as including the role he played in the offence and whether he had any previous conviction of a similar nature. The more he was involved in the offence and the fact that he had a similar previous record will normally aggravate sentence.

17. Now I turn to the ground of appeal which complains that the Magistrate had not viewed the offending VCDs himself but simply accepted the summary of facts relating to the degree of obscenity. I was referred to AG v CHOW Kun Lap where the Court of Appeal refused an application for review of sentence taken out by the then Attorney General. Power V-P said at pp 602E-603C:

"The Crown has to establish the degree of obscenity relied upon the plea. It is true that the applicant (sic) pleaded guilty to both charges but, of course, this plea does not indicate the seriousness of the offence. The Crown also relied upon the agreed facts, particularly the admission by the respondent that a police officer had found the tapes disgusting and filthy. This again does not establish the degree of obscenity as a matter of fact found by the court. The court properly applying its mind to the material before it should have made findings in this regard.

...We have given anxious consideration to this matter but we are quite satisfied that in the absence of a finding as to the degree of obscenity there is no basis upon which we could properly review sentence. The Attorney General's application must, therefore, be refused.

Having said this, we wish to state with emphasis that where it is shown that there is serious obscenity, whether it be proved or admitted, a sentence of imprisonment is undoubtedly appropriate even for a first offender and that it is the duty of the sentencing court in each case to make its own assessment as to the degree of obscenity involved."

18. Reliance is also placed on the judgment of Mayo JA, sitting as an additional judge of the Court of First Instance, in TSANG Biu Sum referred to above, in which the judge said at p 2:

"The question as to whether it was incumbent upon the magistrate to view a sample of the videos was considered in the A.G. v CHOW Kun-lap [1996] 2 HKC 600. It is evident from this review that it is necessary to view tapes before a conclusion can be reached concerning the degree of obscenity exhibited in the tapes. Here as there would appear to have been no such viewing it is only fair to consider these articles at the lower end of the scale of seriousness. I say this notwithstanding the fact that in the agreed facts reference is made to oral sex, sodomy and bestiality."

19. In YU Man Lung, Beeson J did not have Mayo JA's judgment drawn to her attention. She dealt with CHOW Kun-lap at pp 6-7 of her judgment, as follows:

"In that respect I considered the case of Chow Kun-lap which seems to suggest, at first reading, that a Magistrate is required to watch all allegedly offending items before reaching any decision. However the real requirement to be drawn from that case is that a Magistrate must make a finding as to the level of obscenity of the offending item, for sentencing purposes. In Chow Kun-lap the Magistrate failed to make such a finding. Given that in all these cases [before her] the appellants had admitted the items were obscene and that there was material in the form of Admitted Facts under s. 65C [of the Criminal Procedure Ordinance, Cap 221] on which the Magistrate could make a finding and from which he could assess the level of obscenity, it appears unnecessary for him to have viewed the material himself. The described acts in the Admitted Facts indicated that these tapes covered heterosexual intercourse, shots of male and female genitalia and heterosexual sexual acts of cunnilingus and fellatio.

A blanket requirement that a Magistrate view all allegedly offending VCDs, even when they have been viewed by a defendant in company of a police officer and admitted to be obscene and when the described obscenity is couched as Admitted Facts, appears otiose and to impose an unduly heavy burden on Magistrates, particularly given the proliferation of these cases. What is necessary is that there exists sufficient evidence on which a Magistrate can, and does, make findings both as to the existence of obscenity and as to the level thereof. The Magistrate did so in each of these cases.

Of course where a defendant challenges the degree of obscenity the Magistrate would be required to make his own assessment of that obscenity, but again that need not, necessarily, involve him watching tapes from beginning to end; the judicious use of a fast-forwarding device would be sufficient to establish the obscene nature of most tapes." (elaboration added)

20. With the greatest respect, I agree with what Beeson J said relating to how CHOW Kun-lap should be understood and disagree with what fell from Mayo JA in this regard. I do not think that there is, or indeed should there be, any blanket requirement for the sentencing magistrate to view the tapes for sentencing purposes. Such stringent requirement was not mandated by the Court of Appeal in CHOW Kun Lap, where it is explicit in the last sentence of its judgment cited above that serious obscenity could be proved or admitted.

21. A matter of interest connected with the number of obscene VCDs seized was referred to in Beeson J's judgment. The magistrate after noting that the number of VCDs involved in North Kowloon Magistracy alone ranged, on a daily basis, from a few hundred to several thousand, commented that the continued incidence of these offences suggested that the levels of deterrence were lacking in effectiveness. However, in May to July 1999, offenders like the four appellants before Beeson J were charged only for the publication of the few VCDs sold in each case and no charge of possession for publication, under s 21(1)(b) of the Ordinance, was laid for the rest of the shop stock. That was because, according to what the police told the magistrate, police resources were overwhelmed by the number of offences that they were unable, due to insufficient manpower, to view all VCDs seized from each shop. The police practice was thus only to seize the items actually sold and pursue a charge under s 21(1)(a).

22. Following the same logic, in view of the prevalence of this kind of offence coming before magistrates, if each magistrate passing sentence had to view all the VCDs involved, despite using the fast-forwarding device judiciously, as suggested by Beeson J, magistrates would be overwhelmed with the viewing exercise. Insofar as the facts admitted or agreed to by the defendant, pleading guilty or fighting the trial, sufficiently demonstrates the degree of obscenity for a finding to be made for sentencing purposes, magistrates should properly not be burdened with this tedious and sometimes what must be disgusting exercise.

23. In the present case, the summary of facts was read in court and the Appellant admitted those facts. Paragraph 3 of the summary stated that in the police station, the VCDs were found to be obscene, which was agreed to by the Appellant. The VCDs "graphically depicted various acts with thin checkers" including various forms of heterosexual and male homosexual intercourse, buggery, female masturbation, group sex, oral sex, a male performing sexual torture over a female, fellatio and masturbation of a male horse by a female, and pregnant females performing intercourse and fellatio with males. In the Reasons for Sentence, the Magistrate said:

"I was aware that normally a selection of the tapes should be viewed to determine the level of depravity (CHOW Kun-lap Ibid) but here I was of the view that this was fully set out in the summary of facts which had been agreed to by the appellant. I was of the view that the level of depravity as described of some of the VCD's were high. It was hard pornography."

24. Although it appears that the reasoning of the Magistrate is covered by the approach envisaged by Beeson J that there is no absolute necessity for a sentencing magistrate to view the offending material where there is sufficient proof of the degree of obscenity and depravity for him to make a finding on the subject, the circumstances that prevailed in the present case before the Magistrate did not fully support his finding that "the level of depravity as described of some of the VCD's were high". I say that not because the admitted facts do not show that the VCDs come into the category of hard pornography, as some of them involved buggery, sexual acts with a horse and sexual torture, as admitted in the summary of facts, but because of the indication that thin checkers were present. As to which parts of the pictures the thin checkers covered and the extent to which the checkers were able to hide, there was no admission or agreement. Without viewing the VCDs, it would not have been possible for the Magistrate to have appreciated the degree of the visibility of the highly obscene or depraved scenes, despite the admitted description of the contents of the VCDs. This ground of appeal therefore succeeds.

25. While I also agree with the submission that the sentence should not be directly proportional to the quantity of VCDs seized, it is clear law that the quantity involved is a matter to be taken into account in considering sentence. That does have a bearing on the size and damaging effect of the offending operation and the overall criminality of the offence. I also reject the ground of appeal that intimates that the Magistrate had failed sufficiently to take into account the lack of previous conviction of a similar nature. The Magistrate merely did not allow any reduction from the starting point on the ground of clear record.

26. Judging from the above cited authorities, it also appears to me that the starting point of two years of imprisonment adopted by the Magistrate was out of line and manifestly excessive, even taking into consideration the Magistrate's view, which is correct, that the prevalence of the offence must attract a heavier sentence for general deterrence. The Appellant was 49 years of age and suffered from a disabled right leg. He could not find a job as an electrician and therefore worked as a keeper at the shop selling obscene VCDs. He made a frank confession to the police upon arrest. Bearing in mind all the circumstances of this case, treating the VCDs to be at the lower end of obscenity and depravity to accord the benefit of the doubt to the Appellant that the thin checkers were able to cover the most offensive parts of the scenes, I am of the view that a starting point of 15 months' imprisonment would have been appropriate for charge (1). I hope this would be sufficient deterrence for this kind of offence. The 15 months should be reduced by the guilty plea readily made by the Appellant, resulting in a 10 months' imprisonment. The sentence for charge (2) is, however, not disturbed. The 10 months' imprisonment should, as the Magistrate correctly decided, run concurrently with the sentence for charge (2). I allow the appeal to that extent. The total sentence to be served is therefore 10 months' imprisonment.