HKSAR v. SO KA KIT

1997, NO. MA 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

_______________

_______________

_______________

J U D G M E N T

_______________

1. The appellant and two other defendants (the 1^st and 2^nd defendants) were arrested by the police and they were separately charged with offences of possession of obscene articles for the purpose of publication. The charge against the appellant is that he was in possession of 150 obscene VCDs.

2. He pleaded guilty to the charge.

3. The facts admitted by him were as follows.

4. He was seen driving a private car by police officers conducting an anti obscene articles operation. The other two defendants were in the car. The appellant drove them to outside Tak Wan Plaza where the two defendants got out. They were seen going into a shop in the Plaza. Subsequently, the 1st defendant was seen coming out of the shop carrying a plastic bag. The police stopped and searched him and found 450 obscene VCDs in the bag. Inside the shop where the 2^nd defendant was still there, police found 18,000 obscene VCDs.

5. The appellant was arrested while he was waiting outside in the private car and police found a plastic bag containing 150 VCDs in the front passenger seat. The appellant admitted that he was employed by someone to deliver obscene VCDs to customers, using his private car.

6. The 1^st defendant was sentenced to 5 months imprisonment, the 2^nd defendant to 5 months imprisonment suspended for 18 months and a fine of $20,000 and the appellant was sentenced to the Detention Centre.

7. The appellant now appeals against sentence on the ground that the number of VCDs he was in possession was much smaller than those of the other two defendants. His VCDs were not of the most obscene or hardcore category whereas the 2^nd defendant was in possession of a vast number of obscene VCDs of the most depraved kind. The 2^nd defendant was given a suspended sentence whereas he was given a custodial sentence. The unequal treatment by the magistrate is unfair. In addition, this is the first time the appellant experiences the "clang of the prison gates". He has been in custody since his conviction and there is a positive recommendation for probation and community service with good support from his family. A non custodial sentence is more appropriate in these circumstances.

8. The magistrate in his reasons for sentence said the following in respect of the appellant's case :

"The 3^rd Defendant (the appellant) was only charged with possession of 150 pieces of VCDs. These VCDs contained materials being 'scenes of sexual activities between a female and different males, oral sex and vaginal sex involved'. There was no bestiality or group sex involved.

I did not sentence the 3^rd Defendant for possession of the VCDs other than the 150 pieces for which he was charged for possession of. A person is not to be sentenced for crimes without a conviction. However, it was also clear that the 1^st, 2^nd and 3^rd Defendants worked together as a team, and that the 3^rd Defendant's possession of the 150 pieces of VCDs was part and parcel of this illicit wholesale and distribution enterprise dealing with a sizeable stock of 18647 pieces of obscene VCDs. I considered the culpability of the 1^st, 2^nd and 3^rd Defendant as equal notwithstanding the difference in number of the pieces of VCDs forming the subject matters of the respective charges that each of them faced."

9. The magistrate also said :

"It was also clear and notoriously known that the trade in obscene VCDs was flourishing in the face of existing sentences although not to the extent of becoming wholly uncontrollable. It was also clear that the 3^rd Defendant's possession of the 150 pieces of VCDs and the role he played was integral to this obscene VCDs wholesale and distribution enterprise which constituted substantially to the circulation of such articles in the market."

10. Mr Grounds for the appellant submits that the 150 VCDs were at the lower end of the scale of obscenity which should not necessarily result in immediate imprisonment. He also submits that the magistrate was wrong to have treated the culpability of all defendants being equal since they were not jointly charged. The magistrate was also wrong to treat the 2^nd defendant who committed a more serious offence more leniently than the appellant. Mr Grounds further submits that the magistrate should not have lightly disregarded the reports on probation and community service which give a favourable view on the appellant.

11. The appellant has one previous conviction in respect of a similar offence committed by him two days before the present offence and was fined $6,000. It would appear that he repeated similar offences within a short time. For offences of this kind, immediate custodial sentence is not inappropriate where there is evidence of serious obscenity such as group sex, simulated rape, intercourse with animals and homosexuality (A.G. v. Tang King Ming [1986] HKLR 210, R. v. Kwong Wing Fat [1986] HKLR 301, R. v. Lam Wing Ching Magistracy Appeal 641 of 1990 and A.G. v. Chow Kun Lap Application for Review No.6 of 1996). The magistrate said in his reasons for sentence that 50% of the total VCDs seized were hard porn but he drew a distinction between those involving the appellant which are less obscene and those involving the other two defendants which are at the other end of the scale. That being so, the magistrate should not have equated the appellant with the other defendants when he assessed the appellant's criminality in the offence. There is no evidence to show that they operated jointly a porn VCD wholesale and distribution centre. The facts do not admit of such an inference. If there were evidence that the 18,000 odd VCDs were in their joint possession for the purpose of any such joint enterprise, the appellant would have been jointly charged with the other two defendants for possession of all the VCDs seized in the operation. The magistrate in considering the sentence of the appellant should not have regarded the appellant as integral to a wholesale and distribution enterprise.

12. Although the magistrate is entitled to decide what is best for the rehabilitation of the defendant, he must not, in dealing with a number of defendants involved in the same offences, impose a sentence on one as would likely to instill a sense of grievance on the others. The magistrate's treatment of the 2^nd defendant who was more seriously involved with a non-custodial sentence might have instilled a sense of grievance on the appellant.

13. The appellant has been in the Detention Centre since 14 August 1997 and has been in custody for almost three months. The prescribed period of detention in the Detention Centre is from 3 to 12 months. The appellant has now served the minimum period. That would have given the appellant sufficient experience to deter him from repeating his unlawful activities. The Probation and Community Service Order reports are favourable and made recommendation for probation and Community Service Order. These are rehabilitative measures. In my opinion, a community service order which will require the appellant to perform service to the public following his experience in the Detention Centre would be the most appropriate way in dealing with the appellant.

14. In the circumstances, the appeal against sentence is allowed and the Detention Order set aside substituting therefor a community service order whereby the appellant shall perform 200 hours of community service.