ATTORNEY GENERAL v. TANG KING MING

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JUDGMENT

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Li, V.-P.:

1. The respondent was convicted on his own plea upon two charges of having objectionable articles for publication for gain contrary to section 4(1)(b) and section 4(2) of the Objectionable Publications Ordinance (the Ordinance).

2. The particulars of the offences relating to the first charge disclose that on the 6th of November 1984 he had in his own home at Room 6, 8th floor, Kwai Yuen Building, Whampoa Estate, Hung Hom, Kowloon for publication for gain objectionable articles namely, 58 video cassette tapes. The other charge involving the same offences alleges that he had a total of 35 master tares of similar nature in his father's home at Room 813 Geranium House, Ma Tau Wai  Estate, Tokwanwa, Kowloon. In addition to the above two charges he was also convicted on his own plea upon a charge of being in possession of plates contrary to section 5(2) of the Copyright Ordinance which is not the subject matter of this application.

3. Having heard plea in mitigation on his behalf and considered the Probation Officer's Report, the magistrate bound him over in the sum of $3,000 to be of good behaviour for two years and ordered him to pay costs of $1,000 in respect of the two charges involving the objectionable articles and another $1,000 in respect of the charge of infringing copyrights.

4. Pursuant to leave granted by the learned Chief Justice the Attorney General applies to this Court for a review of sentence in respect of the charges involving the objectionable articles only. The application is founded upon the ground that the sentence is wrong in principle and manifestly inadequate. At the conclusion of the hearing we indicated that we would refuse leave to review in the present case but would give our reasons later which we now do.

5. The acts relating to these two charges are that on the 6th of November 1984, after a period of surveillance, officers of the Customs & Excise Service raided the respondent's home. Upon entry the respondent and his wife sere found inside. The officers also found, upon search, that there was a television set, 3 video cassette recorders, 1 booster, 59 suspected pornographic video cassette tapes and 3 sheets of catalogues for pornographic films. At the time the television set, the video cassette recorders and the booster were connected together and 2 of the video cassette recorders were found in the process of duplicating pornographic video cassette tapes. Upon subsequent examination it was found that, out of the 59 video cassette tapes, 58 of them contained objectionable materials within the meaning of the Ordinance. Upon enquiry the respondent revealed that some video cassette tapes of similar nature were stored in his father's residence. The defendant was taken to his father's home. In a bedroom there he took out a paper box containing 38 video cassette tapes of which 35 were found to contain objectionable materials within the meaning of the Ordinance. These formed the subject matter of the aforesaid two charges.

6. Upon caution the respondent admitted that he and his family resided at the Kwai Yuen Building apartment, that all the video cassette tapes found in his residence belonged to him and they were all pornographic tapes of sexual intercourses. They were either used as master tapes for making other copies for sale or else to be sold to seamen. Some of these pornographic tapes were recorded by him by using the 3 video cassette recorders, the television set and the booster in his home. All the video cassette tapes found in his father's residence belonged to him and these tapes were master tapes for duplicating other copies. If customers required any of those tapes found at his father's residence they could be sold to them or they could be duplicated if they only wanted conies. The 3 sheets of catalogues found in his home were for reference by the seamen before they ordered from him any pornographic tape.

7. Upon his conviction a Probation Officer's Report was ordered. The report shows that the respondent is 25 years of age, married with two children - one 4½ years old and the other 6 months old. Prior to May 1984 he was in the employment of the International (H.K.) Trade Co., Ltd. for 4 years earning the monthly wage of $3,500. His wife encountered complications with her second pregnance last year and required care most of the time. They did not wish to impose upon their in-laws. The respondent wished to stay home to take care of his wife and the household chores. It was by coincidence that one of his friends suggested to him that he could duplicate pornographic video cassette tapes for sale to seamen. Thus the defendant started this trade in their home as from May 1984. He resigned his job from the International (H.K.) Trade Co. and started duplicating tapes for his friend earning approximately $2,500 per month. He did that because he did not realize, at the time, the seriousness of the offence. It served his purpose because in so doing he could stay home to take care of his wife and the household chores and at the same time earned an income. It was reported that he had no depraved tastes nor was he related to any other undesirable elements. He was remorseful over this offence and had stopped this unlawful activity immediately. Two months prior to the Probation Officer's Report he had resumed work at the International (H.K.) Trade Co.

8. The respondent had a clear record. The impression of the probation officer was that the respondent is an adult with a decent family background. He managed to lead an industrious life over the past years and maintainer good relationship with his family. The sole motive of duplicating these pornographic tapes for sale was to be able to earn a living and look after his wife at the same time. The probation officer considered that basically the respondent was a good person and had learned his lesson. She did not consider that any probation supervision was necessary. It was in such circumstances that the learned magistrate made the order as aforesaid.

9. Learned counsel for the Crown very fairly conceded that this might not be the best case for a review under this legislation. However, in view of the diversity in the scale of sentences imposed by different magistrates he asked this Court, whether allowing or refusing to review the present case, for some guideline. He produced a list of sentences imposed in other cases of similar nature for the period between October 1984 and January 1985 Upon perusal it appears that no sentence of immediate imprisonment have been imposed. Sentences at the lower end of the scale varied from a fine of $1,000 in respect of 4 tapes to $2,000 for 34 tapes, 1 reel of 8 mm film and 19 magazines and at the higher end to a penalty of $14,500 for 71 offensive tapes and suspended prison sentences couple with fines in two cases.

10. Our a attention was drawn to the case of Holloway ⁽¹⁾ (on sentencing). In that case, the appellant was convicted of 6 offences of having obscene articles for publication for gain. He was sentenced to 6 months imprisonment in total. The obscene and objectionable materials contained in the film in that case consisted of sexual perversions like fellatio, cunnilingus and the like. Dismissing the appellant's appeal against sentence Lawton, L.J. as he then was said as follows at page 131:

"In the judgment of this Court, the only way of stamping out this filthy trade is by imposing sentences of imprisonment on first offenders and all connected with the commercial exploitation of pornography: otherwise front men will be put up and the real villains will hide behind them. It follows, in our judgment, that the salesmen, projectionists, Owners and suppliers behind the owners should on conviction lose their liberty. For first offenders sentences need only be comparatively short, but persistent offenders should get the full rigour of the law. In addition courts should take the profit out of this illegal filthy trade by imposing very substantial fines."

11. This passage of Lawton, L.J.'s judgment was considered and applied in another case of Victor Zampa ⁽²⁾.  In that case the appellant was convicted of a series of similar offences between the beginning of 1982 to about June/July 1982. In that case the Court considered that the defendants' guilt was aggravated by the fact that some of their offences charged in the second two indictments were committed after the seizure of some of the items which were subject matter of the first indictment. But the appellant was not the top man in the trade. The Court considered that it was not a case in which it was appropriate to impose the maximum sentence for the offence. A total sentence of 3 years was reduced to 12 months so as to enable the appellant to be immediately released.

12. Returning to the case before us, we have to observe that there is no evidence as to the degree of depravity or obscenity in the contents of the materials of those video cassette tapes. The agreed facts contained in the summary show only that they all contained materials of obscenity. The respondent is a first offender. He has a very good probation Officer's Report showing that he is remorseful. He adopted this particularly offensive trade as a matter of convenience so that he could solve his financial difficulties and to take care of his wife while she eras expecting their second child. Apparently the magistrate had been asked to review his own decision as to the penalty and he agreed that, having regard to the records, the penalty he had imposed was low. However, he pointed to the global fine in case W4222/84 in respect of five charges of $5,000. He stressed that it was important to consider the rehabilitative as well as the punitive aspect of the sentence and considered that the penalty imposed together with the global costs of $2,000 awarded by him in respect of charges A, D and B was proper.

13. We agree with learned counsel for the Grown that this may not have been the most appropriate case for this Court to intervene. The discretion of the trial magistrate who has all the material facts before him and who has viewed the offensive video cassettes must be respected. Having regard to the special circumstances of this case, we are not inclined to interfere with the penalty. For these reasons, the application is refused.

14. Be that as it may, the provisions in section 4(2) of the Ordinance provides that:

"Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine of $100,000 and to imprisonment for 3 years."

This reflects the serious view taken by the legislature as to the offence of having for publication for gain any objectionable article.

15. Mr. Hartmann concedes that guidance in the matter of sentence offers special difficulties in these cases. That is so, firstly, because the courts are obliged to measure the heinousness of the material by the yardstick of contemporary sensibilities - a very difficult test to apply in a mixed society at a time of shifting values; and, secondly, because the material itself is as various as the whims and disorders of the appetite it is designed to gratify.

16. The distinction commonly drawn between "soft porn" and "hard porn" is perhaps the nearest one can get to a practical manner of categorizing the material. But, whereas in the case of dangerous drugs the distinction between "hard" and "soft" is easy to apply and therefore affords a valid means of establishing the appropriate scale of sentence, the same is not true of obscene material.

17. "Hard porn" is generally held to comprehend the depiction or description of behaviour of an especially gross or offensive kind often involving something in the nature of perversion shading into brutality and sadism at the outer limit. But perversion may be latent in the eye or mind of the beholder, and the particular viciousness of this trade lies in its potential for damaging those who are most clearly at risk: the very young or the psychologically disturbed. For these, the wide distribution and ready display and availability of material showing or suggesting explicit sexual activity of any kind may prove deeply disturbing and demoralizing.

18. For this reason, the scale and commercial sophistication of the operation - including particularly the extent and visibility of display - are the factors of primay importance when sentence is being considered. The relative "hardness of the material will of course remain a potent aggravating factor. Again, the incidence of the offence - whether it is on the increase, and to what extent - is clearly also a consideration of great importance.

19. Where the court is satisfied (a) that the material is obscene; (b) that the trade is flourishing in the face of existing sentences; (c) that the case before it concerns a substantial contribution thereto so that, (d), deterrence is a paramount consideration, then the robust approach adopted by the Court of Appeal in Holloway ⁽¹⁾ and in Zampa ⁽²⁾ is, in our view, entirely appropriate to Hong Kong in what appears to be the present state of play in the offensive publications field in this territory.

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

21. Since it would appear that custodial sentences have not usually been imposed for these offences in the past, it may be that comparatively short sentences of imprisonment may well be considered adequate in mild to average cases. Fines or more lenient treatment should continue to be imposed in very small or "one-off" instances of transgression.

22. Although the present case did not really fall within the latter category, we did not alter the sentence partly because of the strong features of mitigation but also because the case was specifically taken upon review for the purpose of seeking guidance for the future and because, as has beer indicated, it was not itself ideal for that purpose.

(1)    1982 CAR (5) 128

(2)    1984 CAR 110