HKSAR v. NGAI WING KEUNG

HCMA 110/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 110 OF 2004

(ON APPEAL FROM ESCC 4060/2003)

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J U D G M E N T

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1. This Appellant pleaded guilty and was convicted in the Magistracy of one charge of Possession of Obscene Articles for the Purpose of Publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. He was sentenced to 10 months' imprisonment, fined $20,000 and ordered to serve 3 months' imprisonment, consecutive, if he defaulted on payment of the fine. The Appellant now appeals against the sentence, in respect of the fine and the default provision.

2. There are two grounds of appeal: (1) the Magistrate erred in imposing a default order of 3 months' imprisonment for non-payment of the fine of $20,000.00 as the Magistrate's enquiry as to the means of the Appellant to pay a fine was not supported by evidence adduced in the enquiry. Further, there was no evidence adduced in the enquiry by the prosecution to prove the means of the Appellant, or to contradict evidence adduced by the Appellant as to his means. (2) That in all the circumstances of the case the fine and the default order of imprisonment was manifestly excessive and was wrong in principle.

3. The Magistrate in his Reasons for Sentence noted that the Appellant had been in possession of 4267 obscene discs, at what was described as a "notorious location" for this type of offence. The Appellant had 31 previous convictions, including 4 for similar offences and was in breach of a suspended sentence imposed four months earlier for a similar offence. The Magistrate considered a higher starting point for sentence was appropriate because of the Appellant's disregard for the law and took 15 months as the starting point. He then stated:

"I was also satisfied that an additional financial penalty should be imposed. I heard evidence regarding the defendant's ability to pay a fine and was satisfied beyond reasonable doubt that the bail money was available to the defendant to dispose of."

4. The final paragraph of the Magistrate's Reasons for Sentence stated, erroneously, that there were two charges for which he imposed concurrent sentences of 10 months' imprisonment, together with a fine of $10,000.00 on each charge. This error is of no significance since in his oral reasons for verdict the Magistrate makes it quite clear that he was sentencing for one offence.

5. After plea, the Appellant's counsel told the court that he was 51 years of age, was single, had received Primary 3 education and asked for leniency; that was the total mitigation.

6. The Magistrate noted that the Appellant had been convicted repeatedly in the past three years. In September 2003, he had been fined a total $5,000.00 and given a sentence of 6 months suspended for 12 months for 2 similar offences. He considered imprisonment was appropriate, and that on this occasion a larger fine was appropriate also. The Magistrate asked whether defence counsel had any instructions as to whether a fine could be paid from the bail money.

7. Counsel advised that the Appellant could not pay the fine from the bail money, because it had been borrowed from a relative and the Appellant wanted the bail money returned to his younger brother.

8. The Magistrate was not prepared to accept that information and asked whether the Appellant wished to give evidence. Counsel said the Appellant would ask the court to call his family member to give evidence and proposed to give evidence himself.

9. The Appellant, in evidence, said he was told by the police he required $25,000 for his bail, so he telephoned his younger brother to ask him to put up the bail money. His younger brother arrived at the police station, a short time later, with $25,000.00. The arrangement was that the money would be repaid to his brother after the Appellant appeared in court and when the case was finished. He gave the name of his younger brother.

10. In cross-examination, he said he did not know how much his brother earned. He borrowed the bail money intending to repay his brother, although he conceded that he could not be certain whether or not the bail money would be given back to him.

11. In answer to questions from the Magistrate he said he had been working in May 2000 and so was able to pay a fine from his savings. In September 2003, the bail money used for the fine of $5,000.00 had been his own.

12. The Appellant's younger brother said he worked as a salesman in the printing industry and earned about $17,000.00 a month. He confirmed that at about 5:15 p.m. on the day in question, his brother made a request for bail money. He then asked his friend to lend that sum and around 6 p.m., he was able to go to his friend's place to collect the money. Sometime past 7 p.m., he went to the Wanchai Police Station and gave it to his brother. The friend the brother borrowed the money from, told him he had borrowed it from another friend, so he had to repay him as soon as possible. He had not lent the Appellant money for bail before. He confirmed that he borrowed the whole sum of $25,000.00, despite himself having savings of more than $25,000.00.

13. He did not know his elder brother, the Appellant, had committed similar offences throughout the past three years. He rarely had contact with him and they seldom met. If the Appellant was unable to repay the sum, he would be quite disappointed because he had promised his friend that he would repay him. However, that was not possible he could do nothing about it.

14. He told the Magistrate he had not told his friend why he wanted the money, but just said it was for an urgent purpose and he would return the money several days later.

15. The Magistrate after hearing evidence did not accept that the money was borrowed on a promise that it would be repaid. He did not believe either the Appellant or his brother and opined that anybody who was willing to put up $25,000.00 would certainly want to know what was being done with the money, particularly if the person borrowing the money had no great means himself. Whatever arrangement there was between the Appellant and his brother, or between the brother and other people, the Magistrate was satisfied the money was given to the Appellant for his bail without any strings attached. On that basis, he was satisfied beyond reasonable doubt the bail money was available to the Appellant to dispose of as he wished.

16. The Magistrate having reached that conclusion then stated "you are now sentenced to 10 months' imprisonment and a fine of $20,000.00. The fine is payable forthwith. If you do not pay that forthwith, you will serve an additional 3 months' imprisonment - 3 months consecutive to the 10 months." (B28 M-O) (emphasis supplied)

17. The Appellant told the Magistrate he would not pay the fine from the bail money, but would give it to his younger brother. The 3 months' sentence in default of payment was activated.

18. The Magistrate also activated the suspended sentence, but keeping totality in mind made 2 months of that 6 months' sentence concurrent with the present sentence. (10 months + 4 months + 3 months = 17 months)

19. After considering the grounds of appeal, I should state at the outset:

(1) It was not inappropriate, given the circumstances of this case for the Magistrate to impose a fine in addition to a sentence of imprisonment;

(2) an examination by the Magistrate as to the circumstances under which the bail money was obtained and whether he is able to, or wishes to, use it to pay a fine is not necessarily the same as an enquiry as to a defendant's ability to meet a fine.

20. No information was given by the defence counsel in mitigation as to the Appellant's ability to pay fine. The Magistrate did not ask any questions as to means, but immediately seized on the bail money as a possible way of paying the fine. The Appellant said he borrowed the money from his brother and did not want to use that money for paying the fine.

21. The Magistrate should have made enquiries as to the financial circumstances of the Appellant generally and considered (a) whether or not a fine of $20,000.00 was appropriate; (b) whether or not the Appellant was able to pay it and (c) if so, how long it would take him to pay it. Although the Appellant was a repeat offender, there was no evidence before the court to show he had profited in any way, except as an employee from the venture for which he was arrested.

22. A Magistrate should decide whether a fine is appropriate in the circumstances of the case and, if so, what the amount should be. That may involve some enquiries of a defendant in person, or submissions from counsel if represented, as to a defendant's means and ability to pay a fine. If a defendant agrees, money for the whole or part of a fine can be taken from the bail money.

23. If a defendant declines to use bail money because it was borrowed (as in this case) or is to be used for some other purpose, enquiries should be made as to whether or not time is needed, or should be given, for payment. Here the Magistrate's enquiry focused solely on whether or not the bail money was the Appellant's to dispose of as he wished, rather than his ability to meet a fine.

24. Having decided the bail money was the Appellant's to dispose of, it appears that the Magistrate was annoyed by his continued refusal to use the bail money to pay the fine. This resulted in the additional, immediate 3 months imprisonment in default of payment.

25. In my view this was wrong in principle because it appears to the onlooker, and certainly it must have seemed to the Appellant, that he was being punished with 3 months imprisonment for refusing to use his bail money to pay the fine, rather than being fined as a deterrent linked to his offence.

26. Accordingly I allow this appeal to the extent of revoking the fine of $20,000.00 and allowing the appeal against the sentence of 3 months ordered to be served in default of payment.

27. I have considered imposing a fine of a smaller amount, but as the Appellant is serving a not insignificant sentence of imprisonment and is unlikely to be able to pay a fine until after his release, I am disinclined to hamper his chances of rehabilitation on release by his leaving prison with the need to pay a fine pressing on him.