HKSAR v. KWAN SHIU CHUNG

HCMA 704, 777, 779 and 795/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 704 OF 1999

(On appeal from North Kowloon Magistracy Case No. NKCC 2905/99)

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J U D G M E N T

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1. Reasons for Judgment in the appeal of the appellants against sentence in the following cases;

HCMA704/99 HKSAR v Yu Man Lung

HCMA777/99 HKSAR v Lam Siu Wah

HCMA779/99 HKSAR v Kwan Shiu Chung

HCMA795/99 HKSAR v Chu Sai Pun

I am going to deal with all these cases together because the principles and the arguments are the same.

2. All four of the abovenamed appellants appeal against sentences of 8, or in one case 9, months imprisonment imposed on them in North Kowloon Magistracy, by the same Magistrate, for a single offence of publishing obscene articles.

3. The facts of each case are almost identical. Police officers entered 4 shops in each of which one of these appellants was apparently looking after the business. Using marked money the officers bought a few VCDs, the number varying from 3 to 5. In each case the VCDs were obscene and admitted by the appellants to be so. Each appellant was charged with one count of Publishing an Obscene Article, contrary to s.21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap 390.

4. The officers noted the number of VCDs in each shop, which was 2000, 1000, 700 and 300 respectively, but did not apparently seize or examine their content. Each appellant told the police officers that the VCDs in those numbers were also obscene, but no charges of possession were laid in respect of those items. All appellants pleaded guilty to the publishing charges, either prior to the date of trial or on the date fixed for trial. All admitted the obscene nature of the VCDs the subject of the charge and did not dispute the circumstances of the arrest, or any of the facts.

5. Their admissions as to the offence were couched as Section 65(c) admissions i.e. s.65(c) of the Criminal Procedure Ordinance, Cap. 221.

6. There were differences in the appellants' personal circumstances and their previous conviction records, which the Magistrate took account of in each case when sentencing, but these were not of such significance as to warrant any one of these appellants being treated with particular leniency or differently from the others.

7. In assessing a proper starting point the Magistrate noted that the catchment area for the North Kowloon Magistracy, was notorious for offences of this type. He referred to the existence of various premises and shopping centres, clearly known to law enforcement officers and the courts, as perennial venues for such sales and commented on the prevalence of offences of this nature in the area.

8. He pointed out a major increase in such cases in North Kowloon, by referring to the number of cases coming before the No. 1 Court; that number rose from about 20 cases a month prior to 3rd May 1999, to 206 cases for the period from 3rd May 1999 to 30th June 1999 (an apparent fivefold monthly increase), and to 240 cases by the end of July 1999.

9. He noted that the number of VCDs involved in North Kowloon Magistracy alone ranged, on a daily basis, from a few hundred to several thousand. He went on to comment that the continued incidence of these offences suggested that the levels of deterrence were lacking in effectiveness.

10. It appears from his findings and, possibly, from the stated increase in cases in the No. 1 Court, that the police were adopting a different enforcement policy in May, June and July 1999, because offenders like the appellants were charged only for the publication of the few VCDs sold in each case and no charge of possession for publication, under s. 21(1)(b) of the Ordinance, was laid for the rest of the shop stock. The Magistrate on making enquiry about this change of practice was informed that police resources were being overwhelmed by the number of offences and they were unable, because of insufficient manpower, to view all VCDs seized from each shop. Their practice was thus only to seize the items actually sold and pursue a charge under s.21(1)(a).

11. The Magistrate treated these sales as open retail sales of obscene material from apparently specialist shops. These were not, for example, opportunistic sales of one or two tapes by an individual in the street but were comparatively sophisticated retail outlets.

12. For sentencing purposes he took the degree of obscenity at the lowest level based, not on his own viewing of the tapes, but on the admissions made by the appellants under s.65C Criminal Procedure Ordinance, Cap. 221 In each case the appellant had watched the tapes with the police officers and agreed to the brief descriptions of the obscene activities depicted. In adopting this procedure the Magistrate made it clear that he was aware of the admonition in AG v. Chow Kun-lap [1996] 2 HKC 600, but that as he dealt with an average of 65-75 cases a day (presumably in the plea court) there was insufficient time to view even a selection of offending VCDs.

13. In that respect I considered the case of Chow Kun-lap which seems to suggest, at first reading, that a Magistrate is required to watch all allegedly offending items before reaching any decision. However the real requirement to be drawn from that case is that a Magistrate must make a finding as to the level of obscenity of the offending item, for sentencing purposes. In Chow Kun-lap the Magistrate failed to make such a finding. Given that in all these cases the appellants had admitted the items were obscene and that there was material in the form of Admitted Facts under s.65C on which the Magistrate could make a finding and from which he could assess the level of the obscenity, it appears unnecessary for him to have viewed the material himself. The described acts in the Admitted Facts indicated that these tapes covered heterosexual intercourse, shots of male and female genitalia and heterosexual sexual acts of cunnilingus and fellatio.

14. A blanket requirement that a Magistrate view all allegedly offending VCDs, even when they have been viewed by a defendant in company of a police officer and admitted to be obscene and when the described obscenity is couched as Admitted Facts, appears otiose and to impose an unduly heavy burden on Magistrates, particularly given the proliferation of these cases. What is necessary is that there exists sufficient evidence on which a Magistrate can, and does, make findings both as to the existence of obscenity and as to the level thereof. The Magistrate did so in each of these cases.

15. Of course where a defendant challenges the degree of obscenity the Magistrate would be required to make his own assessment of that obscenity, but again that need not, necessarily, involve him watching tapes from beginning to end; the judicious use of a fast-forwarding device would be sufficient to establish the obscene nature of most tapes.

16. In fixing the starting point for sentence for these appellants, the Magistrate considered two judgments of Woo J., delivered on 18th and 31st March 1999, where he examined various cases on sentences for the offences of publishing and possession of obscene articles. The first case was HKSAR v. Ngai Yuk-ning MA 1255/98 and the second HKSAR v. Poon Ki-chiu MA 209/99. In Ngai Woo J. approved a Training Centre sentence that had been imposed for possession of 354 articles and in Poon, where the charge related to possession of 429 articles, approved a starting point of 12 months for this offence.

17. It was that starting point that the Magistrate adopted and of which these appellants now complain. The judge in Ngai and Poon had considered various sentences that had been passed in similar cases before ruling on the 12 month starting point. In the case of Poon he considered, additionally, the question of a sentencing discount for plea as the Magistrate had not given a full 1/3 discount for that plea. That point is relevant in the instant case of HKSAR v. Yu Man-lung HCMA 704/99, where there appears to have been some mis-stating of the discount for plea, apparently from inadvertence, on the part of the Magistrate. I shall refer to that matter later in this judgment.

18. Each of these appellants argue that this 12 months starting point was too high given the small number of VCDs for each of the publishing charges; that the level of obscenity was low and that the appellants were not shop owners or persons-in-charge, but merely sales persons. Complaint was also made that no account was taken of the fact that police acted as undercover agents in making these purchases. However I should state there is no validity in that argument. The police are entitled to investigate in that manner when they are trying to stamp out illegal transactions. The acts of the officers did not force the appellants to do acts which they would not otherwise have been prepared to do.

19. The appellants also complained that the Magistrate sentenced them on the basis of the shop stock that was not seized, as if all those items had been obscene articles, although the appellants did not know what the contents were and although they were not seized. I would dismiss that ground of appeal at the outset, because it is clear that the Magistrate did not sentence these appellants for the unseized and unexamined stock, but merely noted the presence of other VCDs as an indication that the premises were being operated as a retail sales outlet; an inference he was entitled to draw from the facts before him.

20. The nub of these appeals was the argument that the number of VCDs sold should affect the length of sentence, in other words, that the publication of 3 or 5 VCDs merited a shorter sentence than the sale of, say, 50, or 100, or 1000. Counsel drew an analogy with the tariff guidelines for dangerous drugs and suggested that just as the quantity of narcotic affected the length of sentence, so too should the number of VCDs published or possessed.

21. I accept thatLau Tak Ming drug sentencing tariffs are based on the narcotic content of the drug seized, but would point out that there is not any tariff case of that nature for these offences. Although the number of articles is one factor that can be, and has been taken into account in these cases in the past, there is no Court of Appeal case that states that is the chief criterion. In publishing charges the number of articles purchased is, of necessity, an arbitrary one, depending as it must to a certain extent on the amount of cash given to the purchasing officers and to the number of items they are instructed, or think it expedient, to buy at any one time.

22. It is also necessary to consider the purpose of this Ordinance and the punishments set out thereunder. The maximum sentence for this offence is three years with a maximum fine of $1m. It is stating the obvious to point out that this legislation does not exist just for the purpose of regulating the sale and supply of obscene articles. It exists for the purpose of stopping such trade altogether. And just as narcotics dealers cannot continue their nefarious work without the assistance of couriers and petty traffickers, the trade in obscene VCDs cannot continue without the assistance of those who are prepared to take the risk of working in shops and on stalls selling such items.

23. Sentences, and the examples go as far back as the early nineteen eighties, have ranged through fines, suspended sentences, short immediate prison sentences and, more recently, longer sentences.

24. Despite the efforts of the law enforcement bodies and the work of the courts the trade appears to flourish still. Clearly the rewards for those "Mr Bigs" who run the trade are so great that they can afford to reopen sales venues almost as soon as they are raided. It is noticeable that some of the salesmen are arrested and then are rearrested for similar offences even before the court has had time to deal with the earlier cases. Shops return to the same venue under slightly different guises. Fear of the penalties they may suffer and, for repeat offenders, the fact of imprisonment, do not appear to be sufficient to deter people from taking posts as salesmen. Although the court has power under the Ordinance to impose heavy fines for these offences, such fines, in reality, cannot be imposed on the generally impecunious salesmen who appear before the court for these offences.

25. It would appear that the courts must respond with sentences that are truly deterrent. Only by so doing can those salesmen, without whom the trade would largely fold, be discouraged from taking up or, in some cases, continuing this work.

26. 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.

27. That this deterrence is countenanced is evident from the judgment in R v. Lam Pak-ying MA 636 and 637 of 1997, where the Court of Appeal held that an immediate custodial sentence is appropriate even for a first offender. Comment to the same effect in Chau Kun-lap (supra) confirms that.

28. In the cases before me the Magistrate considered as a major factor that these were prevalent and apparently increasing offences and imposed sentences intended to deter. He was entitled to take account of the prevalence of these offences in the North Kowloon area. He took proper account of the major and only mitigating factor in each of these cases, which were the pleas of guilty. He adopted a proper starting point based not only on the number of articles published, which is only one of many factors to consider, but on the act of publication itself.

29. It may be that these sentences are higher than has been usual for these offences. It may be that, as counsel for the appellants argued (although without providing any evidence on the point), that some Magistrates are fining offenders or passing suspended sentences. Those too are sentencing options and no doubt passed by those Magistrates based on the facts of individual cases. I am not dealing with those cases however. I am called on to consider whether these sentences are manifestly excessive, or in some way unjust. I consider that the Magistrate was entitled to take the starting point that he did. I am satisfied that he took into account the appellants' personal details and the mitigating factors available to them. I do not consider that these sentences are excessive and I dismiss the appeals in each case, with this exception.

30. In reading the Statement of Findings of the case of the appellant Yu Man-lung MA 704/99, it appears that the Magistrate expressed that he should be given credit for his plea with the usual 1/3 discount. In fact the Certificate of Trial shows that the sentence in its final form was of nine months imprisonment. There does not appear to be any stated reason why this appellant should not have had the full discount and accordingly I allow that appeal so as to impose a sentence of 8 months imprisonment.