HKSAR v. WONG MAN FONG

HCMA390/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 390 OF 2003

(On appeal from TWCC 564 of 2003)

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J U D G M E N T

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1. The appellant (who is aged 66) was convicted after trial in the Tsuen Wan Magistrates Court of an offence of possessing, for the purpose of publication, 1,228 obscene VCDs and 426 obscene DVDs. He was sentenced to a term of 12 months' imprisonment. He appeals against both conviction and sentence.

Conviction

2. The prosecution's case at trial can be shortly stated. At 2:30 p.m. on 14 February this year, a police officer in plain clothes was on the ground floor of Tsuen Fung Centre in Tsuen Wan when he heard someone shouting : "$120 for 6 VCDs - the price is reasonable; come to have a look." It was the appellant who was standing outside a shop.

3. The police officer entered the shop and noticed that VCDs and DVDs with pictures of nude men and women on the front were displayed on the racks round the walls. As he was looking through the discs the appellant said to him : "Buddy, $120 for 6 discs - take a look and choose amongst them."

4. The police officer then produced his warrant card and arrested the appellant. After caution, the appellant said : "Ah Sir, give me a chance, I came to work today and I was arrested by you. Today was my first day of work, I just earned some money for a living." He also said that he was the owner of the shop and that the VCDs and DVDs all belonged to him.

5. The appellant gave evidence at trial saying that he lived in Tuen Mun and that, on 14 February 2003, he travelled by bus from Tuen Mun to Tsuen Wan and went to the shop to see if he could meet someone he was familiar with so that he could borrow some money for meals. He said that as he walked past the shop he saw a man called Ka Wah just opening it up and that, all of a sudden, he (the appellant) was grabbed by the policeman, pulled into the shop and arrested. He denied having made any admissions to the police officer.

6. In his Statement of Findings the magistrate says, inter alia, that he found the police officer to have been a reliable and credible witness and that his account of matters was accurate and truthful. The magistrate says that he did not believe the appellant's evidence and, indeed, he goes on to say that he had no doubt that the appellant was lying, particularly about how it was that he came to be standing in front of the shop.

7. Before me the appellant has sought to repeat what he said to the magistrate and he says that the police officer gave false evidence against him. In addition, he says that there was no evidence - such as a business registration certificate - that he was, in fact, the owner of the shop.

8. The fact of the matter is that whether the appellant was the 'owner' of the shop is wholly irrelevant and the magistrate's findings as to conviction cannot be faulted. The appeal against conviction must be dismissed.

Sentence

9. In his Reasons for Sentence the magistrate says this :

"The [appellant] had 43 previous convictions some of which were for similar offences. His most recent conviction was for a similar offence in June 2002 for which he was sentenced to 12 months imprisonment. He was released on 30 January 2003. The level of obscenity was low. In all the circumstances I considered a sentence of 12 months imprisonment to be appropriate."

10. The appellant says to me that his sentence was too severe, not because of its length but because he was wrongly convicted.

11. His appeal against sentence is also dismissed.