HKSAR v. LAM YIU KWAN

HCMA786/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO. 786 OF 1998

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J U D G M E N T

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1. This Appellant was convicted on his own pleas of possession of obscene article for the purpose of publication and displaying of indecent matter. The sentence on the first charge was six months and that on the second charge was two months, the sentences were ordered to run concurrently.

2. The Appellant argues that he deserves a more lenient sentence because he has no record of similar offences and he expected, on the basis of what his lawyer told him, that he would properly get a fine only. He also says that in similar cases he knows of persons receiving sentences of only two to three months, and also the Appellant takes issue with the order for costs imposed by the Magistrate.

3. With regard to the imposition of an immediate custodial sentence, the Magistrate considered various legal authorities, that is decided cases, and he came to the conclusion that the offences involving obscene articles are very prevalent and that it was necessary to impose an immediate custodial sentence even on a first offender as a deterrent and in this he was following the case of HKSAR v. Lau Pak Ying, MA636 and MA637 of 1997.

4. I think it is correct that offences involving obscene articles do call for an immediate custodial sentence even on a first offender as a deterrent. It is of course to be noted that this Appellant is not a first offender, he has a lengthy record although he has no previous similar convictions for offences involving obscene articles.

5. The Magistrate took a starting point of nine months imprisonment which is what he would have given if the Appellant had been convicted after trial, and he reduced the sentence by two months to allow for the Appellant's belated plea. It appears that the first time the Appellant appeared he entered a plea of not guilty and thereafter, the obscene articles were sent to the Obscene Articles Tribunal for a determination as to whether or not they were obscene.

6. If a person pleads guilty on his first appearance in court, then the court will normally allow a discount of one third of the starting point sentence. It is open, of course, where a person does not plead guilty at the first opportunity for the court to reduce that discount, and that the Magistrate has done here.

7. Given the brief facts which showed the nature of the acts graphically depicted on the VCDs, I do not think that there is any doubt that they were obscene in nature, and one would not have thought that it was necessary for the average person, in deciding whether to plead guilty or not, to think that a determination by the Obscene Articles Tribunal was required. Of course, when a plea of not guilty is entered in this kind of case, a determination is obtained from the Obscene Articles Tribunal as a matter of course in case the question of obscenity is raised at trial. So I cannot find anything wrong with the Magistrate's starting point, nor can I find anything wrong with the discount which he gave, albeit a reduced discount for the belated plea.

8. I note that the Magistrate allowed a further discount of one month because the Appellant had no previous similar convictions. That, in my view, was generous given that the Appellant had 18 previous convictions for different types of offences. It seems to me, therefore, that the sentence of six months for the obscene articles was a proper sentence, and the further concurrent sentence for the minor offence likewise cannot be faulted.

9. I note the Appellant's appeal in respect of the costs. I have noted that the Magistrate said that in the normal case he would not impose an order for costs where an accused person enters a plea of guilty at the first opportunity. However, in this case, he has ordered costs because of the necessity arising out of the plea of not guilty to have a determination by the Obscene Articles Tribunal.

10. I accept that the Appellant would not himself have called for the determination, as I have said, a determination is obtained as a matter of course when a plea of not guilty is entered. But given the descriptions of the sexual acts depicted on the VCDs, I really can see no reason why a person who chooses to enter a plea of not guilty at the first appearance in court and then changes his plea later, should not bear a contribution towards the costs to the public purse of carrying out the Obscene Articles Tribunal determination.

11. The notice of appeal does not specifically enter an appeal against the costs order, but I have treated what the Appellant has said here today as being an appeal against the costs order. That appeal also is without merits and falls to be dismissed as are the appeals against the sentences.