HKSAR v. WONG MAN TAT ALEX

HCMA192/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 192 OF 2000

(On appeal from Tsuen Wan Magistracy Case No. TWCC182/2000)

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

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

J U D G M E N T

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

1. The appellant pleaded guilty to one charge of publishing an obscene article contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance. The facts of the case giving rise to the charge was that on 20 September last year at his home in Foo Hung Estate, Tai Po, he published an obscene article which is in a form of a computer photograph. The photograph depicts a couple in the act of sexual intercourse. At around 2300 hours the same evening, a teacher of a secondary school viewed the article and the accompanying photograph on a website. He reported the matter to the police and subsequently it was traced to the appellant in this case.

2. The appellant was co-operative. He admitted the offence and pleaded guilty before a magistrate. He was sentenced to 6 months' imprisonment. He now appeals against the sentence contending that a prison sentence is wrong in principle and/or the term of 6 months is manifestly excessive. I am told this is the first time a case involving the transmission of obscene photographs via cyberspace has come to court.

3. The learned magistrate treated this as a most serious type of offence. He took the view that the targeted group was school children. Mr Jenkyn-Jones, who appeared also in the court below, managed to persuade the learned magistrate that it is only by inadvertence that the photograph was transmitted to the "school site". The original targeted group was a special interest group named "Sex talk Hong Kong," and for reasons unknown to the appellant, the photograph was mistakenly transmitted to the "school site". The magistrate, in passing sentence, made the following observation at page 16 of the reasons for sentence:

"I considered however, that notwithstanding those matters, that only a sentence of immediate imprisonment could act as deterrent to persons such as the appellant who saw fit to publish such material at a newsgroup website."

4. The criminality of the appellant's action lies in the act of publication by transmission. The object of the legislation, of course, is to prevent the corruption of public morals. In this age of information explosion, there should be some form of limitation as to the nature of the information being published in the cyberspace. The learned magistrate took into consideration the mitigating factors in this case, namely the publication to the "school site" was unintentional, there was no financial or monetary gain whatsoever, his plea of guilty to the charge in the first available opportunity and the fact that the offending material was directed at an adult special interest group.

5. The probation officer was of the view that a community services order is an appropriate sentence and so recommended. I think that a deterrent sentence should be imposed for cases of this nature should be the norm rather than the exception. The criticism that the learned magistrate was wrong in principle in imposing a deterrent sentence is unjustified. This case is different from the material involved in HKSAR v. Hiroyuki Takeda (1998) 1 HKLRD 931 where the defendant in that case was sentenced to prison for 21 months. Items involved in that case consist of some 43 internet photographs, the contents of which are nothing short of being repulsive.

6. I agree with Mr Jenkyn-Jones' submission that this case is much less serious. Only one photograph is involved in this case. I would adopt a starting point of 6 months' imprisonment and having considered all the mitigating circumstances operating in the appellant's favour, reduce it to 3 months' imprisonment.

7. Paying particular attention to the factor of inadvertence in this case and also the favourable probation officer's report, I consider this to be an appropriate case to have the sentence suspended.

8. I order that the period of sentence be suspended for 18 months, to this extent, the appeal is allowed.

...