HKSAR v. LAI YAT BING

HCMA 514/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 514 OF 2011

(ON APPEAL FROM ESCC 2605 OF 2011)

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J U D G M E N T

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1.  On 23 June 2011, the Appellant was convicted of the possession of obscene articles for the purpose of publication, namely 3,177 obscene DVDs, contrary to Section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 (“the Ordinance”).

2.  The Appellant was sentenced by Acting Principal Magistrate D J Dufton Esquire sitting at Eastern Magistrates’ Court to 8 months’ imprisonment and a fine of $10,000 following his plea of guilty to this offence.  The Appellant now appeals against the imposition of the $10,000 fine only, submitting that this was too severe.

3.  Section 21(1)(b) of the Ordinance provides that a person committing such an offence is “liable to a fine of $1,000,000 and to imprisonment for 3 years”.

4.  In HKSAR v TANG Wei-hung HCMA 988/2005 (unreported), McMahon J. dismissed an appeal where the Section 21(1)(b) offence under the Ordinance involved 775 obscene DVDs, and the appellant had been sentenced to 8 months’ imprisonment and a fine of $20,000, saying:

“… The imposition of a fine is a valuable and effective deterrent to offences such as the present. In Attorney General v Tang King-ming [1986] HKLR 210, the court said:

‘We think … that immediate custodial sentences coupled with substantial fines should be considered as the primary option in these cases subject … to such factors of mitigation as may, in the individual case, justify more lenient treatment.’

8. The fine in the present case was substantial, but in my view not excessively so.  The Magistrate made proper inquiry as to the appellant’s ability to pay.  No complaint can be made about the imposition of a fine in addition to the term of imprisonment.”

5.  Returning to the instant case, the Appellant had additionally pleaded guilty to a charge of publishing an obscene article, against which there is no appeal on sentence.  In short, he sold 5 DVDs to a police officer for $100 whilst that officer was posing as a customer, and it is plain therefore that at the very least the Appellant was acting as a salesman for this type of obscene material.  Taking $20 as the going rate for a single DVD, the value of the 3,177 DVDs in the Appellant’s possession was in the order of $63,540 and, seen in this light, the fine was relatively moderate.

6.  The learned Magistrate had made proper enquires about the Appellant’s ability to pay and, in his commendably succinct remarks when sentencing, he said:

“3. The imposition of a fine in addition to a sentence of imprisonment has been approved in numerous cases, see for example HKSAR v WONG Pan HCMA 420/2009; HKSAR v LO Wai-san HCMA 216/2006; HKSAR v TANG Wei-hung HCMA 988/2005; and HKSAR v CHEUNG Sum HCMA 613/2005.

4. In deciding to impose a fine in addition to a sentence of imprisonment I bore in mind that said in HKSAR v CHOY Wing-wah HCMA 717/2001.  The Duty Lawyer informed the court the bail money of $20,000 was available to pay a fine ….  In the circumstances I was satisfied the appellant could pay a fine and fixed the fine at $10,000 from bail.”

7.  It may be that the Magistrate imposed the fine which he did as this was the Appellant’s first offence of this particular kind, albeit he had appeared before the courts on no less than 21 occasions for a wide variety of offences, many of which were related to dishonesty or drugs.

8.  Choy’s case, to which the Magistrate had referred, was closely analogous to the present case. There was in Choy’s case no appeal against the custodial sentences totalling 12 months’ imprisonment on charges of publication and possession but Beeson J. reduced the fines to a total of $10,000 from $40,000 saying:

“10. The Magistrate had the power to impose both a custodial sentence and a fine. Although I am satisfied that he took sufficient steps to ascertain what the Appellant’s means were in imposing that fine, I am concerned as to the level of the fines eventually imposed. The brief facts showed that this Appellant was not a major player in this business, but the usual pedlar brought in to [act] as cannon-fodder for the people who are actually making the profits.

11. As the Appellant had been out of a job for some time he was unlikely to be able to pay a large fine. He might well have had to borrow the bail money. If so he would face a substantial debt on leaving prison. Any difficulty in repayment could lead him to commit further offences because of age-related difficulties in finding work.

12. The Magistrate could not, as he appears to have done, simply rely on the fact that as the bail money in each case was $25,000.00, that was a suitable level at which to peg the fines. He may have suspected that the bail money had been put up by the shadowy people behind these businesses, but in the absence of any other indications that that was so, he should have assessed the level of fine in the light of Appellant's likely income at a legitimate job.

13. For [the] Appellant to repay $40,000.00 over 12 months would mean monthly instalments of $3,000.00 odd, leaving aside any interest element. It is unlikely that any legitimate job the Appellant might find would enable him to do so. For that reason I am prepared to allow this appeal to the extent of reducing the fine in each of these cases to $5,000.00.

14. In doing so I am not setting any general guide to the level of fines for offences such as these.  It is for the Magistrate in each case to impose a fine having regard to all the information available.  Magistrates, in suitable cases, should not hesitate to use their dual power to imprison and fine, bearing in mind that deterrence is their sentencing aim in cases such as these.”

9.  A point made by the Appellant in the present case was that another defendant in a different case, but at the same court and with previous convictions for the same kind unlike the Appellant himself, was sentenced to a term of imprisonment without also having a fine imposed upon him.  This may, of course, be because the prisoner in that other case was unable to pay a fine.  In any event, Miss Lo, in her extremely helpful submission, has been able to demonstrate that in some cases which have been brought before this Court on appeal, fines have been imposed whereas in others no fine has been imposed, and this apparently extends also to cases heard in Chinese.  As Miss Lo stated, sometimes there is no explanation given by a magistrate in the Reasons for Sentence for the absence of a fine so that it is not possible to say whether this is because of a lack of means to pay or for some other reason.

10.  It is to be hoped that the Chief Magistrate will look into this as a matter of some urgency, because parity of sentencing in commonly encountered offences is essential and it is extremely unfair if some defendants are being treated more harshly than others merely depending upon which magistrate they appear before.  A consistent approach needs to be maintained or it will give rise to an understandable and genuine grievance.

11.  Having said that, the sentence in this case was not out of line with previous authority and, accordingly, the appeal is dismissed.