HKSAR v. TANG WEI HUNG

HCMA988/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 988 OF 2005

(ON APPEAL FROM ESCC 3272 OF 2005)

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J U D G M E N T

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1. This is an appeal against sentence only.  The appellant was convicted at Eastern Magistracy on his own plea of an offence of possessing 775 obscene DVDs for the purposes of publication contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390.    He was sentenced to eight months’ imprisonment and fined $20,000.

2. The facts were straightforward.  The appellant had possessed the discs at premises known as Shop 153–154 in the Oriental 188 Shopping Arcade in Wan Chai Road.  He appeals his sentence on the basis it is too severe.

3. The magistrate in passing sentence said this :

“The offence is extremely prevalent and the Oriental 188 Shopping Arcade is a notorious outlet for the sale of obscene discs.

In that Arcade Shop 153–154 is probably the most notorious shop selling such discs and it features as the location of offences on an almost weekly basis in this Court.

Despite increasingly heavy penalties the unlawful trade continuous to flourish.  Heavier penalties have proved no deterrent.”

4. In HKSAR v. Yu Man Lung, HCMA704/1999, Beeson J said :

“A court in sentencing for such offences will take into account the number of articles, the level of obscenity; the circumstances of the sale, the sophistication of the method of sale, and the prevalence of the offence, as well as the usual factors personal to the offender that are generally relevant in sentencing.  However, the main consideration for such sentences is deterrence, not just for the offender before the court, but for all those others who find this lucrative trade, even at its fringes, so attractive.”

5. In the present case there were 775 DVDs.  That quantity could be fairly said to be substantial.  The contents of the discs showed “explicit sexual acts between males and females with a clear display of sexual organs of males and females”.  The discs were on sale to the general public by way of the operation of commercial premises and the offence, bearing in mind the magistrate’s findings excerpted above, is prevalent in the particular area the appellant’s shop was located.

6. In these circumstances no complaint can be made about the severity of the term of imprisonment imposed on the appellant.

7. The magistrate imposed a fine of $20,000.  The imposition of a fine is a valuable and effective deterrent to offences such as the present.  In AG 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.

9. The appeal is dismissed.