HKSAR v. CHUNG YUN HUNG

HCMA 1245/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1245 OF 1999

(ON APPEAL FROM NKCC 3423/1999)

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against sentence and an order for costs. The appellant faced a charge of publishing obscene articles, contrary to s. 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. He was dealt with at the North Kowloon Magistracy. His first court appearance was on 17 June 1999. At that appearance he entered a plea of not guilty. So the case was set down for trial. On 14 July 1999 the case came on for trial before J L Saunders Esq (as H.H. Judge Saunders now is). The appellant changed his plea to one of guilty. After hearing mitigation, the Magistrate sentenced him to 10 months' imprisonment, and ordered him to pay $5,000 costs.

2. Before me, it has been argued on the appellant's behalf that the sentence passed by the Magistrate was too severe, and that the Magistrate ought not to have ordered costs against the appellant.

3. The facts of the case were as follows. On 2 June 1999 in a retail shop in Mongkok, the appellant, who was tending the business at that shop, sold eight VCDs to an undercover police officer posing as a customer. Those eight VCDs were the obscene articles which the appellant was charged with, and eventually pleaded guilty to, publishing. There were, he admitted, a total of about 500 obscene VCDs in the shop at the material time.

4. As to that, the Magistrate said this in his Reasons for Sentence:

" The appellant was, as were most of the other similar offenders in May June and July, charged in relation to the sale of only a few VCD's. However he admitted, as all do, that the sale was in a retail situation and that there were about 500 other similar VCD's for sale in the shop. When I enquired from the prosecution as to why all the VCD's were not seized and a charge laid in relation to all I was informed that police resources are being overwhelmed by these offences and there is simply insufficient manpower to allocate officers to view each VCD if a seizure is made of the contents of the shop. Accordingly the current police practice is to seize merely the items in the sale."

5. Be all of that as it may, I am satisfied that the Magistrate only sentenced the appellant for what he was actually charged with although the Magistrate did not blind his own eyes to the fact that the appellant was tending a retail shop and not merely peddling a few articles in the street. If a man was merely peddling a few items in the street, the isolated nature of his offence would be urged in mitigation. No such mitigation is available to this appellant. That was really all that the Magistrate was saying.

6. As to precisely what the eight VCDs showed, the position is as follows. In AG v. Chow Kun Lap [1996] 2 HKC 600, which was a review against sentence, the Court of Appeal said this at p. 602 D-G:

"The question that this court must ask itself is - how bad were these particular tapes? How obscene were they? There were no findings in this regard as the magistrate appears not to have viewed any part of the tapes seized. The Crown has to establish the degree of obscenity relied upon the plea. It is true that the applicant pleaded guilty to both charges but, of course, this plea does not indicate the seriousness of the offence. The Crown also relied upon the agreed facts, particularly the admission by the respondent that a police officer had found the tapes disgusting and filthy. This again does not establish the degree of obscenity as a matter of fact found by the court. The court properly applying its mind to the material before it should have made findings in this regard."

7. One way of assessing the degree of obscenity without actually viewing the material is by way of agreed descriptions of their contents. But there was such a description in HKSAR v. Tsang Biu Sum, HCMA Nos 405 & 406 of 1998, 23 July 1998; and notwithstanding that Mayo JA, sitting on his own, said this at p. 2:

"The question as to whether it was incumbent upon the magistrate to view a sample of the videos was considered in the AG v. CHOW Kun-lap [1996] 2HKC 600. It is evident from this review that it is necessary to view tapes before a conclusion can be reached concerning the degree of obscenity exhibited in the tapes. Here as there would appear to have been no such viewing it is only fair to consider these articles at the lower end of the scale of seriousness."

8. What happened in the present case, and why, is explained by the Magistrate in this passage in his Reasons for Sentence:

"Notwithstanding the admonition in AG v. CHOW Kun-lap [1996] 2 HKC 600 I did not view any of the VCD's. In Court 1 North Kowloon I am required to deal with an average of 65-75 cases a day. There is simply not sufficient time to view even a selection of VCD's."

9. I appreciate the difficulty faced by magistrates. The net result, as I see it, is this. Samples are of course useless unless they are reasonably representative. The task of selecting representative samples could be very time-consuming. And it would appear that even if representative samples were selected, viewing them would put a very great strain on magistrates' time. So if the contents of obscene VCDs are dealt with by way of agreed descriptions, then (in line with what the Court of Appeal said in AG v. Chow Kun Lap at p. 602 D-G and what Mayo JA said in HKSAR v. Tsang Biu Sum at p. 2) the sentencing magistrate will have to take the view most favourable to the defendant consistent with the description. I would emphasise those words "consistent with the description". The defendant is certainly not entitled to have it assumed in his favour that the articles are of the least serious nature coming within the concept of obscenity. He is only entitled to have it assumed in his favour that the articles are of the least serious coming within their description as obscene articles.

10. I do not detect anything inconsistent with the foregoing in the approach adopted by the Magistrate in the present case.

11. As to the starting point taken by the Magistrate in the present case, which was 15 months' imprisonment, discounted to 10 months' imprisonment for the appellant's guilty plea, I think that there can be no doubt that it is a higher starting point than those taken in relevant past cases. The real question is whether the Magistrate was justified in his view that the time has come when more severe sentences were necessary in the public interest. In AG v. Tang King-ming [1986] HKLR 210, which was a review of sentence, the Court of Appeal laid down what circumstances had to the present before sentence levels could justificably be increased. The Court of Appeal referred to the English cases of R v. Holloway (1982) 4 Cr. App. R. (S) 128, R v. Zampa (1984) 6 Cr. App. R. (S) 110, and then said this at p. 214 D-E:

" 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 and in Zampa 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."

12. In the sort of cases coming before them frequently, experienced magistrates are in the best position to discover, from the actual cases coming before them and their colleagues in the same or other magistracies, what the position is when it comes to stable, decreasing or increasing prevalence. Their views and the steps which they consider it necessary to take are very worthy of respect. The Magistrate in the present case put his experience to careful use. He said this in his Reasons for Sentence:

"1. The area over which this Magistracy has jurisdiction is notorious as a seat of offences of this nature;

2. there are a number of premises in this area of Mongkok which is notorious as a venue for the sale of obscene VCD's.

3. it is an offence of considerable prevalence: new instances of these offences come before this Court every single day of the week;

4. until the beginning of May 1999 new offences came before Court 1 North Kowloon at the rate of about 4-5 a week, or 20 a month. In the period from 3 may to the end of July 1999 over 240 new cases of this nature came before the court. There has been a vast proliferation of the offence.

5. the numbers of VCD's involved, on a daily basis in this Magistracy alone, range from a few hundred to several thousand;

6. the continued incidence of these offences suggests that the levels of deterrence are lacking in effectiveness;"

13. The increased prevalence which had to be dealt with by magistrates was, it can be seen, extremely steep. In my view, the increased starting point taken by the Magistrate in the present case was a proper response in the public interest to such increase. The sentence of 10 months' imprisonment passed on this appellant was severe, was meant to be severe, and was justifiably severe. The appeal against sentence is dismissed.

14. I turn now to the appeal against the order for costs. Counsel for the appellant raised a number of arguments and referred to HKSAR v. Law Pak Ying, HCMA Nos 636 and 637 of 1997, 28 August 1997 in which Yeung J said this at p. 3:

" The learned magistrate, in imposing the fine of $40,000, might have been encouraged by the fact that in respect of the two cases, the appellant was able to put up cash bail in the total sum of $40,000. It is well-established that the court should not impose a fine which is beyond an accused's ability to pay. I would further suggest that a court should not impose a fine which is financially crippling to an accused. The fact that the accused was able to put up the $40,000 in cash as bail money did not necessarily mean that he could afford a fine of the same amount. It could have been a loan from friends or even from loan sharks.

One can well appreciate the anxiety on the part of any accused to try to raise bail money, even though the amount may not, in the normal course of events, be within his ability to put up. It is indeed suggested by Mr HUNG, on behalf of the appellant today, that this bail money of $40,000 was obtained as a loan from his sister and from a finance company.

Unfortunately, on this part of the case, the learned magistrate had not made any inquiry as to the financial capability of the accused when his background clearly indicated that he probably could not afford a heavy fine. In my view, in failing to make such inquiry the learned magistrate fell into error."

15. Those circumstances are a far cry from the circumstances of the present case. The Magistrate said this as to why he ordered $5,000 costs against the appellant:

" The appellant had entered a plea of not guilty and the matter had been set down for trial. It had been necessary for the prosecutor to prepare for trial and court time had been allocated for the trial. It had been necessary to take two police officers off the street, away from their normal duties to come to court to give evidence. The appellant's late, non-notified plea of guilty meant that all of those resources were wasted.

As I have set out above, in a three month period over 240 of these cases have come before the court. About half of the offenders plead guilty on the first day they are asked to plead. Of the 120 trials so far set down for trial between the beginning of May and the end of July 1999 not one has proceeded to a trial. Some of those who have pleaded not guilty on the trial day have instructed the duty lawyer in good time to enable the duty lawyer to notify the court of the intended plea and avoid the waste of resources I have set out above.

For those who do not notify a plea in advance I have been imposing a costs order of $5,000 to recoup to the government the losses incurred. The appellant agreed that that sum could be deducted from his bail. No suggestion was made to me at the time that I made the order that the funds were borrowed funds. I made a costs order accordingly."

16. There is nothing in the Costs in Criminal Cases Ordinance, Cap. 492 or elsewhere which says that a convicted person must always have costs ordered against him just because he was convicted after trial. Nor is there anything in that Ordinance or elsewhere which says that a convicted person can never have costs ordered against him just because he had pleaded guilty. The case of HKSAR v. Chan Kwok Wah [1999] 1 HKC 697 relied upon by counsel for the appellant does not say otherwise.

17. Counsel for the respondent drew my attention to the English Court of Appeal's decision in R v. Maher & others (1983) 5 Cr. App. R. (s) 39. The decision of the court relevant to what I have to decide may be taken from the following part of the headnote:

" The cases showed that a plea of guilty was a factor to be taken into account when deciding whether to order a defendant to make a payment towards the costs of the prosecution. MATTHEWS (1979) 1 Cr.App.R.(S.) 346 did not establish that such an order should be made where there had been a plea of guilty only in special circumstances. The weight to be given to a plea of guilty must depend on the nature of the case and the stage in the proceedings when it is offered. The nature of the present case was such that it was appropriate to make orders against all the appellants, including those who had pleaded guilty."

18. Counsel for the appellant said that R v. Maher & others was decided on a different statute scheme and is of no assistance to the present case. In my view, there is no such difference between the English statue scheme and ours which renders R v. Maher & others irrelevant here. What was said in that case represents in my view good sense which can and should be applied in Hong Kong.

19. There was also the argument of counsel for the appellant that what the Magistrate did was to deal with the matter as a policy matter and that the Magistrate was wrong in doing this. As I see it, the Magistrate did not fetter its own discretion by reference to same policy consideration. What he said in the passage which I have quoted above shows only that he has behaved consistently. Behaving consistently is not a fault in itself.

20. In my judgment, the Magistrate was entitled to make the costs order which he made against the appellant. The appeal against that order fails. Accordingly, the appeal is dismissed in its entirety.