HKSAR v. MOK KWOK WING

HCMA1119&1120/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1119 AND 1120 OF 1998

(On appeal from KTC 2148 AND 2185 of 1998)

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J U D G M E N T

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1. The appellant, MOK Kwok-wing, appeals against his sentences of 9 months' imprisonment in respect of each offence, for offences of possession of obscene articles for the purposes of publication. These were passed on him on 22 October 1998 by Mr Ian Candy, Permanent Magistrate sitting at Kwun Tong Magistracy.

2. There were two separate cases. In each the appellant pleaded guilty to the charges.

3. Briefly, the facts of each case were that the appellant was found by an undercover police officer on two separate days, 2 and 4 September 1998, in a place known as the Kwun Tong Plaza at Shop 137, selling obscene video compact discs. On 2 September he had 223 of such discs and on 4 September, two days later, he had 234.

4. Before Mr Candy, the defendant admitted that the discs in each case contained obscene material. Mr Candy, as it was perfectly proper for him to do, viewed those discs, or a selection of them, in the presence of the prosecutor and the duty lawyer and formed the view that the degree of obscenity shown in each of them was towards the higher end of the scale. He observed that, in the discs he viewed, acts of sexual intercourse between men and women were depicted, as were acts of oral sex and buggery.

5. Mr Candy reminded himself of the fact that the maximum penalty for this offence is 3 years' imprisonment and a fine of $1 million. In his reasons for sentence, Mr Candy made it clear that he was aware that the defendant was merely an employee at the shop, but he also took into account that the appellant had many previous convictions, mainly for drug offences. Mr Candy considered, given the number of the appellant's previous convictions for drug possession, that it would be pointless sending him away for a drug addiction treatment centre suitability report, as he doubted that the appellant would benefit from a period of compulsory training in a drug addiction treatment centre.

6. Mr Candy also took into consideration that the defendant had committed the second offence, the one on 4 September of last year, whilst on bail for the first and that the appellant had also committed the second offence from the same premises. He considered that to be an aggravating feature which merited consecutive sentences.

7. Mr Candy, who is a very experienced magistrate, commented in his reasons for sentence that this type of offence is prevalent and that the Kwun Tong Plaza is notorious within the area of Kwun Tong Magistracy for the sale of such discs. He commented, again based on his experience sitting at Kwun Tong Magistracy, that this particular Shop, number 137, is one of the most notorious in the area for the sale of these obscene articles, and has been the location of many offences dealt with by the magistrates at Kwun Tong, in the 9 months preceding the date of sentence.

8. He stated in his reasons for sentence that the magistrates at Kwun Tong have been issuing warnings since early 1998 that immediate custodial sentences will be imposed even on first offenders, such is the prevalence of those offences within the Kwun Tong Magistracy area. He reminded himself of various cases dealing with the level of sentence for this offence and set those out in his reasons for sentence.

9. He took the view that given the number of discs involved, which in total in the two cases was nearly 500, and the relatively high degree of obscenity shown in them, that 12 months' imprisonment was the appropriate starting point for sentence after trial in respect of each offence. He allowed a reduction for the defendant's plea of guilty, but not the usual one-third discount, since the defendant had been caught in the act of committing the offences, and also because the defendant had chosen to repeat the offence.

10. In his notice of appeal, the appellant says that he considers the sentences too severe. Before me this morning he said that on release from prison he found it difficult to obtain proper work, and that selling these articles was the only work that he could obtain.

11. I have carefully considered Mr Candy's reason for sentence and also the appellant's argument before me this morning. I am of the view that the sentences imposed by Mr Candy are entirely correct. The courts, both the Magistrate's Court and the Court of First Instance sitting on magistracy appeals, has made it very clear that those who choose to sell such obscene articles, particularly where the degree of obscenity is as high as it was in this case, must expect to receive immediate sentences of imprisonment, even though they are first time offenders for this offence, as this appellant was.

12. I can see nothing wrong with Mr Candy's starting point of 12 months' imprisonment for each offence after trial, and I believe it was entirely proper of him to reduce it by only

25 per cent, rather than the accepted one-third discount, in view of the fact the appellant was caught in the act of selling these video discs and in view of the fact, as Mr Candy said, and as I have commented, that the appellant chose to commit the second offence whilst on bail for the first.

13. Mr Candy rightly took into consideration the totality principle, and was correct to order that 6 months of the sentence for the second offence run concurrently with the sentence for the first offence, making a total of 12 months' imprisonment for both cases.

14. These sentences are perfectly appropriate for these offences and this offender and his appeal against sentence is dismissed.