HKSAR v. LAM CHUNG LEUNG

HCMA595/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.595 OF 2002

(ON APPEAL FROM ESCC 446 & 1603 OF 2002)

----------------------

-----------------------

---------------------

J U D G M E N T

----------------------

1. On 24 May 2002, the appellant pleaded guilty before Mr Dufton at the Eastern Magistrates' Court to three offences under the Control of Obscene and Indecent Articles Ordinance("the Ordinance"), Cap.390 which arose out of two separate cases and he sentenced him to terms of imprisonment of 18 months and to fines totalling $10,000. He now appeals against those orders on the basis that the prison sentences are said to be too severe and that the fines are too large.

2. The charges were as follows : firstly, under case number ESCC446/2002, possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Ordinance, charged with three others that, on 4 December 2001, shop 101, 188 Wanchai Road, Hong Kong they were in possession for the purpose of publication of 1,479 VCDs and 23 DVDs. In respect of this matter he was sentenced to a term of 12 months' imprisonment. Secondly, whilst on bail for that matter, the appellant committed the offences relating to case ESCC1603/2002, in which he was charged with two offences : (1) publishing an obscene article, contrary to section 21(1)(a) of the same Ordinance where it was said that he had published five obscene VCDs for which he was sentenced 12 months' imprisonment and to fine $5,000, and (2) possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Ordinance, where the allegation was that he possessed 2,528 obscene videos for publication for which he received a further 12 months' sentence, to be served concurrently with the sentence on the previous charge, but these two sentences were directed to be served consecutively, as to six months, in respect of the 12 months imposed in case ESCC446/2002, hence the total term of 18 months' imprisonment, and he was also fined a further $5,000 on this charge.

3. All of these offences were committed in the same shop at 188 Wanchai Road which Mr Dufton has observed is notorious for the sale of obscene material. He has related in his Reasons for Sentence that this trade prospers from this particular address and that the Eastern Magistrates' Court is called upon to hear cases from there almost on a daily basis. He describes the offences as prevalent in the division of this magistrates' court. The obscene materials comprised VCDs and DVDs, showing explicit sexual acts between men and women with, as the policewomen who prepared the brief facts put it; "... particulars focus on their sexual organs ..." There were also scenes showing oral sex.

4. The magistrate has carefully explained his approach to sentence in these matters. The offences are prevalent, the second case related to offences committed by the appellant whilst on bail for the first charge, which he rightly described as an aggravating feature, and the quantity of the discs was substantial.

5. The other feature here is that the appellant is no stranger to these offences and indeed to the courts. His record shows 22 previous convictions for a variety of offences including offences of dishonesty, membership of triad societies, drug offences and in recent years, four offences which are identical to the ones that relate to this appeal. He has been sent to prison on at least eight previous occasions. The appellant therefore could hardly expect the consideration that someone of previous good character would be entitled to. The magistrate took a starting point of 18 months which for these offences had been approved in previous decisions of this court in cases such as Tang Kam Cheung, HCMA937/2000 and Choy Wing Wah, HCMA717/2001. He gave the appropriate discount of one-third for the pleas of guilty and then ordered that six months of the sentence in respect of ESCC1603/2002 should be served consecutively to that in ESCC446/2002, therefore producing a total of 18 months.

6. In my judgment, he was absolutely correct in directing that part of the sentence in respect of that matter should be served consecutively, particularly where these offences were committed whilst the appellant was on bail for identical offences. In all the circumstances, that was the right overall sentence. This was clearly a highly profitable commercial enterprise and so the appellant can also hardly complain that he was fined for these matters. The appellant can have no ground for complaint and this appeal must stand dismissed.