HKSAR v. WONG CHUN KEI

HCMA1005/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1005 OF 2003

(ON APPEAL FROM ESCC 2959 OF 2003)

----------------------

--------------------

------------------------

J U D G M E N T

------------------------

1. On 17 September 2003 the appellant pleaded guilty at Eastern Magistrates Court to an offence of publishing 10 obscene articles and to an offence of possessing 309 obscene articles for publication, both offences being contrary to section 21(b) of Chapter 390.

2. He was sentenced to six months' imprisonment for each offence those sentences to be served concurrently. He appealed against that sentence saying that it was too severe. On 3 December I dismissed the appeal and said that I would give my reasons later. These are my reasons.

3. What the magistrate had to say about the matter in his helpful statement of reasons was (inter alia) this :

" The admitted facts were that a police officer, posed as a customer and went to Shop 153A New Trend Plaza, King's Road, North Point. The appellant told him that he could have 10 discs for $100 and that he could select from a drawer. The officer selected 10 discs and paid the appellant with police marked money. The officer left the premises after which a search warrant was executed. On arrest the appellant asked for a chance.

In passing sentence I considered the decision in YU Man-lung MA 704/99 where the court upheld a starting point of 12 months imprisonment after trial. Starting point of between 12 and 18 months imprisonment have regularly been upheld (see HO Kee-pui MA 224/2003).

The trade in obscene articles continues to flourish with new cases almost every day. The offence remains a prevalent one in the jurisdiction of Eastern Magistracy.

In assessing the degree of obscenity I bore in mind that said in YU Man-lung and CHUNG Yun-hung MA 1245/99 (also see SUEN Shun-wing MA 1248/99) with regard to viewing the discs. Sitting in a busy plea court there is insufficient time to view even a selection of the discs. Based on the description in the admitted facts and the photographs produced I was satisfied the discs were of the least serious nature coming within the concept of obscenity.

Taking into account the quantity of discs I was satisfied a starting point of 12 months imprisonment was proper. I gave full credit to the appellant for his plea of guilty and took into account his family situation, physical disability and that he had no previous similar convictions and reduced the sentence to 8 months imprisonment.

The policy of the law is to encourage guilty pleas by guilty persons. To encourage early pleas of guilty my practice in sentencing offenders in the plea court is to give an additional 2 months discount to those who on their first appearance in court admit obscenity pursuant to section 29 of the Ordinance without the need to refer to the Obscene Articles Tribunal for determination and plead guilty at the first available opportunity. I therefore gave the appellant an additional 2 months discount thereby further reducing the sentencing to one of 6 months imprisonment."

4. Before me the appellant produced a letter which he had written saying that he was, in effect, only standing in for somebody else on the date of the offences and that he had only made $100. He also said that he knew of other people who had committed offences of this kind and who had received a sentence of four months' imprisonment.

5. On behalf of the respondent Mr Madigan submitted that the sentences imposed upon the appellant were extremely lenient in the circumstances and, in his written submission he referred me to what was said by the Court of Appeal in HKSAR v. Chan Man Lung HCMA61/2003 as follows :

"... Generally we agree that an immediate term of (a) custodial sentence is still required as deterrence"

and

"... in the absence of exceptional mitigating factors, an immediate custodial sentence of 9-12 months as the starting point is appropriate for the offence of publishing obscene articles or possession of obscene articles for the purpose of publication,"

6. It must follow that the sentence imposed upon this appellant was entirely appropriate given the factors set out above.