HKSAR v. LEUNG KAM FAI

HCMA 742/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 742 OF 1999

(On Appeal from NKCC 3424 of 1999)

_______________

________________

________________

J U D G M E N T

________________

1. The Appellant appeals against his sentence on one charge of Publishing an Obscene Article, the obscene articles being 8 VCDs. This Appellant was caught in the usual fashion, police officers entered retail premises and using marked money purchased the 8 VCDs. The Appellant admitted at trial that the VCDs were obscene.

2. The Magistrate took into account the plea of guilty. He took into account that Appellant was unemployed. He was aware that an immediate custodial sentence was appropriate for these offences even in the case of a first offender. Although this Appellant was a first offender in respect of publishing an obscene VCD, he had a lengthy criminal record involving some 21 previous convictions.

3. The Magistrate imposed a deterrent sentence in view of the increased number of these offences and in view of the fact that the particular area in which the court is was a hot spot for this type of offence. He took a 12 months starting point based on the guideline cases and, giving Appellant full credit for his plea of guilty, sentenced him to 8 months' imprisonment.

4. He imposed an order for costs on this Appellant because this was one of the very common cases where an accused says he is going to contest the charge; arrangements are made for a trial; witnesses are detailed to come to court; a court is set aside for the hearing and then on the day of hearing the accused pleads guilty.

5. For that reason, the Magistrate imposed a costs order, I do not propose to lift that order as there were grounds for imposing it. This appeal against sentence is dismissed.