HKSAR v. HIROYUKI TAKEDA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 315 OF 1998

(On Appeal from ESC 4660/97)

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J U D G M E N T

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1. On 25th of February this year, the Appellant pleaded guilty before a Magistrate sitting at the Eastern Magistracy to one charge of Publishing Obscene Articles and one charge of Possession of Obscene Articles for the Purposes of Publication contrary to S.21(1)(a) and (b) respectively of the Control Of Obscene and Indecent Articles Ordinance, Cap.309. On 11th March, having considered the psychiatric and background reports and the mitigations put forward, the learned Magistrate sentenced the Appellant to a term of 21 months on each conviction but ordered that they were to be concurrent. The Appellant now appeals against those terms of imprisonment.

2. On an appeal against sentence, an appellate court is required to have regard to whether the sentence passed was manifestly excessive in the circumstances, or wrong in principle.

3. Mr. H. Y. Wong who appears on behalf of the Appellant here but not below submitted, inter alia, that the Appellant is 24 years old, a Japanese national who worked as a computer technician in Hong Kong. He also has been of previous good character. Mr. Wong put forward three grounds of appeal the aggregate complaints of which were that the starting point of 30 months was too high because the statutory maximum was 36 months, that the reduction of 9 months for a plea of Guilty was not sufficient, that it was wrong in principal to pass a deterrent sentence on a first offender. In support of his contention in respect of the deterrent sentence ground, he cited the well known case of HO Kau v. R. [1978] HKLR 197.

4. Mr. Granville Cross S.C. with Mr. Vincent Wong who appear for the Respondent submitted that this was a publication on the Internet and there have not been previous similar cases of such publication. What happened was that acting on information from Interpol, Vienna, the police located the Appellant's website which eventually lead them to arrest the Appellant. Further, that this was a worst-case scenario and because of that, the personal circumstances of the Appellant pales into insignificance. 41 obscene pictures were published and 43 possessed for the purpose of publication. The case of R. v. Russell [1986] 8 Cr. App. R. (S) 367 was cited. In that case the obscene photographs were of children and on appeal, the sentence of 2 years' imprisonment was reduced to one of 18 months. My attention was drawn to the part of the judgment which emphasized that the sentence was proper when such offences were committed "whether for profit or not". Special mention was also made of the United Nations Convention on the Rights of the Child to which Hong Kong is committed and that to honour that commitment, there must not only be effective laws at the state level, but appropriate sentencing at the court level.

5. Up until the case of AG. v. TANG King-min [1986] HKLR 211, it seems that for offences such as the present (which was under the old Objectionable Publications Ordinance), the common penalty was a fine. However, in TANG's case, the Court of Appeal in Hong Kong recognized that an immediate custodial sentence was not wrong but that comparatively short sentences may be adequate in "mild to average cases". There have been many occasions since then for these courts to consider the appropriate sentence in such cases.

6. It is not necessary to go through all of them suffice it to say that the general view taken seems to be that an immediate sentence varying between 4 to 6 months, depending upon the facts and circumstances of the case, is appropriate.

7. S.2(2), which is part of the "Interpretation" section of Cap.390, simply says that for the purposes of the ordinance, "obscenity" and "indecency" include violence, depravity, and repulsiveness. I frankly do not think that when the legislature enacted that part, that they had ever dreamed of the possibility of someone publishing something which even came close to the sort of obscenity that I have the misfortunate of encountering here. Certainly the words "depravity" and "repulsiveness" are not strong enough to describe the contents of the articles which the Appellant had published and possessed for the purpose of publication. I have looked at the pictures because it is my duty so to do and in order that I may know what we are dealing with here. They are not simply common pornography which includes the shewing of nudes, shewing publicly what people do in private or homosexual acts but are depraved heterosexual and homosexual acts with very young children, dead bodies, dismembered body parts and so on. Fear and nausea were my immediate reactions to these pictures. The experience sent shivers up my spine; even now when I think about them. I cannot envisage anything more depraved. To describe them as obscene simpliciter would be a gross under-statement. I can only echo the sentiments of the learned Magistrate who passed sentence in the court below that the pictures depict scenes of such utter depravity, and are of such absolutely revolting nature that it will be hard to find anything which would top them on the list of obscenities. Something therefore must be done to truly reflect the horror, shock and total disgust that such pictures will bring to all and sundry. Further, to have published them on the Internet which has the potential of an extremely wide audience both locally and internationally (and the fact that the complaint in relation to this matter originated from Vienna proves that); that this audience may well include children and mentally unstable persons; and that this was totally without safeguards whatsoever since it was free, must be, to any court, serious aggravating factors.

8. I have taken into consideration all that has been said and all that could be said on behalf of the Appellant. Firstly, the fact that the pictures were not published for profit I find not to be a mitigating factor of much import. If the publication was for profit, then it serves as an additional aggravating factor. Further, it is clear that the Appellant knew that such publication was also an offence in Japan and therefore the allegation that they were easily available there is not a mitigating factor either. In other words, the offences were not committed because of ignorance of law. I have also taken into consideration the need to keep objectionable disparities in sentencing for like offences to the minimum.

It is in the light of all the above, that I considered whether the learned Magistrate was wrong in principle to have passed a deterrent sentence upon the Appellant since he is a first offender, and whether the sentence in all the circumstances was too sever and manifestly excessive.

9. Where deterrence is the paramount consideration because of the particular facts or circumstances of the case, then a robust approach to sentencing is appropriate [per Li V-P in AG. v. TANG King-ming [1986] HKLR 211]. A deterrent sentence may be in personam or in rem. Normally if the circumstances that pertain to an offender are such that the court is of the opinion that it must be brought home to him that he is not to commit such offences again, for example, a repeat offender, a deterrent sentence in personam is proper. When an offence is, inter alia, so prevalent or is so serious within its class, and the court is of the opinion that those of like minds are to be strongly discouraged from committing the same or similar offences, then a deterrent sentence in rem is called for.

10. The case of HO Kau has often been cited in support of the proposition that it was wrong in principle to pass a deterrent sentence on a first offender. However, if the judgment of Addison J. was read, it is clear that the learned judge did not in fact say that. At page 198 of the report, Addison J. said:

"The principle that a deterrent sentence ought not to be imposed on a first offender was enunciated in the case of R v. Curran (1973) 57 Cr. App. R. 945, 947. There Mr. Justice MacKenna said this: -

"As a general rule it is undersirable that a first sentence of immediate imprisonment should be very long, disproportinate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonbly determined by considerations of individual deterrence."

11. This principle has been adopted by the Court of Appeal in Hong Kong both in the case of R. v. LEUNG Sum (Cr. App. 410/77, unreported) and in R. v. Garthwaite (Cr. App. 566/77, unreported). In the case of Garthwaite, the learned Chief Justice had this to say:-

"Finally, it is not desirable that the first sentence of imprisonment passed on an offender should be a deterrent sentence in the sense of a general deterrent to deter other persons from behaving as this appeallant did." "

Therefore, what Addison J. said was that in accordance with the cases, a deterrence in rem, on a first offender was generally wrong in principle.

12. In this case, I am totally satisfied that a deterrent both in personam and in rem are justified. The court must discharge its duty and bring home loudly and clearly to the Appellant and the public that such or similar behaviour will not be tolerated and that those who do transgress will be dealt with severely and without mercy.

13. In all the circumstances, nothing said on the Appellant's behalf or about the case has caused me the slightest hesitation that the starting point of 30 months and the concurrent terms of 21 months passed by the learned Magistrate was anything but proper. The terms are in no degree excessive nor in anywise wrong in principle. The learned Magistrate's orders are therefore confirmed and the appeal against sentence is dismissed.