HKSAR v. LEUNG SIU YIN

HCMA879/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 879 OF 1998

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J U D G M E N T

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1. The Appellant was the 1st Defendant out of two defendants, who appeared before Mr T Casewell in Tsuen Wan Magistracy on 19th August 1998. The Appellant was charged with two charges, both under s.21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390.

2. The first charge, which is a joint charge against both defendants, alleges that on 6th August at a shop in Tsuen Wan, the two of them possessed for the purpose of publication obscene articles, namely 7,214 VCDs and 75 DVDs. The second charge alleges against the Appellant himself that on the same day at another shop in the same complex in Tsuen Wan, he possessed for the purpose of publication obscene articles, namely 1,247 VCDs and 3 DVDs.

3. The facts are really no different from most cases involving obscene articles, namely police officers entering the shop, finding the defendant there and finding the obscene articles inside the shop. The difference between the two defendants is simply that the Appellant admitted that he was the key-holder and taking care of two shops, whereas the other Defendant only admitted that he was a salesman in one of the two shops. The obscene articles in this case showed sexual intercourse and incidental activities connected with sexual intercourse.

4. The learned Magistrate adopted a starting point of six months for the first charge and reduced it to four months for the Appellant's guilty plea. On charge two, he took a starting point of three months and reduced it to two months for the Appellant's guilty plea and made the two sentences concurrent.

5. One of the complaints of Mr Allan, appearing for the Appellant on his appeal against sentence is that the learned Magistrate did not appear to have viewed the obscene tapes, VCDs and DVDs, and he relied on the case of HKSAR v. Tsang Biu Sum MA405 & 406 of 1998 were Mayo J.A. said that it was necessary for a Magistrate to view tapes before a conclusion can be reached concerning the degree of obscenity exhibited in the obscene articles.

Mayo J.A then said :

"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."

In that case there were two raids of premises which took place within a week of each other and a substantial quantity of videos was seized on each occasion. Mayo J.A. upheld the sentence to six months passed in respect of the first count but ordered three months out of the six months imposed for the second charge be served concurrently, making a total of nine months instead of the original 12 months.

6. In the instant appeal, it does not appear that the learned Magistrate did view the obscene articles but he was referred to a number of photographs which were in fact stills of the contents of some of these videos and from these photographs the learned Magistrate was able to know the degree of obscenity involved in each video and what each video depicted. The descriptions which the learned Magistrate mentioned in his reasons for sentence and which described the nature of the activities in the videos appeared to be correct descriptions. So in my view no complaint can be made that the learned Magistrate did not view the tapes in question or a sample of them.

7. Another case which has been referred to me is the case of HKSAR v. Lau Pak Ying MA 636 & 637 of 1997. In that case, again, there were two raids on premises when obscene articles were seized and the two raids were within a week of each other. A large number of obscene VCDs was seized from the shop on each occasion. On the first charge, the defendant was sentenced to six months and fined a substantial amount of money. On the second charge, he was also sentenced to six months concurrent and fined a substantial amount of money. In that case, the defendant had 17 previous convictions. On the appeal before Yeung J., no point was taken as regards the length of imprisonment and the appeal was concerned with the amount of the fine imposed.

8. Mr Allan's second ground of appeal against sentence is that there appeared to have been no distinction made between the Appellant and the 2nd Defendant who was older, aged 58 as opposed to the Appellant's age of 23 and who also had 54 previous convictions as opposed to the Appellant who had a clear record. Of the Co-defendant's 54 previous convictions, none of them appeared to have been similar to these offences. In the reasons which the learned Magistrate gave in open court and also in the reasons for sentence which he wrote up subsequently, he did not mention the fact that the Appellant's clear record was also taken into account in either adopting a particular starting point or giving a suitable discount for the plea of guilty and other matters of mitigation. I correct the last statement because in the Magistrate's reasons in open court, he did say that he had considered the Appellant's clear record.

9. In his reasons for sentence, he mentioned that he was reducing the sentences from the starting point taking into account the Appellant's plea of guilty. The sentence imposed on the Co-defendant was exactly the same as that imposed on the Appellant, namely four months' imprisonment. The Appellant was involved with two charges whereas the Co-defendant was only involved with one. In relation to the two charges that the Appellant was convicted of, the learned Magistrate quite properly in view of the fact that they both occurred on the same day made the sentences concurrent, so that the result is even if the Appellant had faced one charge instead of two, the total sentence would still have been the same. It would appear that the learned Magistrate was trying to balance up the difference between these two Defendants by giving them the same sentence when the Appellant was involved with the two charges but had a clear record whereas the Co-defendant was involved with only one charge but had a bad record of 54 previous convictions.

10. In my judgment, the learned Magistrate did not give sufficient credit to the Appellant for his previous good character. There should have been a difference, even a small one, in the sentences imposed on the two Defendants. In the event, I will allow the appeal by reducing the sentence of four months imposed on charge one to one of three months.

11. The sentence on charge two remains as it is, namely two months concurrent. So the appeal is allowed to that extent.