R. v. LO CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 856 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty to a charge of possession of obscene articles for publication. On 13th June 1996, he was serving in a shop which was in a shopping arcade. Inside the shop were 54 video tapes. Their content was obscene in that they showed sexual intercourse between men and women as well as oral sex. There was a video in the shop so that those customers who wanted a preview could watch.

2. The appellant appeared before the magistrate on 21st June 1996, and he pleaded guilty. He is aged 62 years. This is not the first time he has breached this particular law. This is his third conviction. In August 1994 for publishing an obscene article and for possession of obscene articles for publication he was fined a total of $10,000. Not put off by that penalty, he appeared again before the courts in January 1995 and for the offence of possession of an obscene article for the purpose of publication, he was given a 4 months suspended sentence and fined $5,000. So this offence is not only his third in the space of two years, but it was also committed in breach of the suspended sentence.

3. For the present offence, the magistrate took a starting point of 6 months imprisonment which he reduced to 4 months because of the plea of guilty. So that is the sentence he imposed for this offence, 4 months imprisonment. Then he activated the suspended sentence, but to give effect to his view of the correct totality, he ordered that 2 months of the 4 month term now imposed should run consecutively to, and 2 months should run concurrently with, the 4 months activated sentence, making a total of 6 months imprisonment.

4. It is today said that the 6 months starting point was too high in that only 43 tapes were found and the contents of the tapes did not display sexual perversions; and then it is said that no discount was given for the appellant's advanced age and the fact that until he lost his job 2 years ago, he had led a law abiding life.

5. It is clear from the judgment in Attorney General v. Tang King Ming [1986] HKLR 210 and R. v. Lam Wing Ching Mag. App. No.641 of 1990 to which I have been referred that whilst the "hardness" of the material will always be a potent aggravating factor, immediate custodial sentences are not wrong in principle for cases of publication of less hard material. I have been referred to a number of cases, one of which was Lam Wing Ching[1991] 1 HKLR 217. In that case, Bewley J. said that a term of 6 months imprisonment was appropriate. Mr Kwok, on behalf of the appellant, prayed in aid that case for he says that in that case the material was described as of the most obscene kind. Indeed it was, much more obscene than in this case. And a suggestion of a 6 month term in that case was made in the light of a plea of guilty. I have been also shown one other case in which a sentence of 3 months imprisonment was said to have been appropriate as a maximum for the seizure of a substantially greater quantity of tapes than in this case, amongst which were a few tapes containing "hard" pornography.

6. Other cases are useful tools in ensuring that objectionable disparities in sentencing for like offences are kept to a minimum. But each case turns on its own facts. It is true that in this particular case the nature of the material, inadequately described in the brief facts put before the magistrate, is not at all in the bad category described by Bewley J. I think that the 6 months starting point for this particular offence could be said to be on the high side, given the nature of the contents of the tapes.

7. Viewing the offence in isolation - and in sentencing for the offence itself, it is to be remembered that the appellant is not to be sentenced for his previous offences - I would have imposed after plea a term of 3 months imprisonment. I shall substitute that term for the term of 4 months imprisonment even though to do so, borders on fine tuning, and because I think that strictly speaking the record should accurately reflect the court's view of the gravity in the particular offence.

8. The question then is as to the appropriate totality. In my judgment, the magistrate was generous in ordering part of the sentence to run concurrently with the 4 months activated sentence.

9. This appellant really has no room for complaint. He has been given every latitude and opportunity, and to argue that on a third offence within 2 years, and in breach of a suspended sentence, a total of 6 months imprisonment for the 2 offences together is excessive, is self-evidently in my judgment to argue a point without any merit at all.

10. Consequently, I shall order that 2 months of this 3 month term shall run consecutively to and 1 month concurrently with the 4 months activated sentence, making a total of 6 months in all, which is the same term as imposed by the magistrate.

11. In passing the sentence, I take account of the appellant's age. He is 62. The sentence is short and I see nothing wrong in principle in sentencing a man of this age to 6 months imprisonment when the blame for his predicament in the circumstances described lies entirely at his door.