HKSAR v. GIANT VIDEO DISTRIBUTION LTD

      [English Translation – 英譯本]
HCMA 1153/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

 MAGISTRACY APPEAL NO. 1153 OF 2007

(ON APPEAL FROM KCSS NOS. 22117-9 OF 2007)

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REASONS FOR JUDGMENT

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1. The appellant company pleaded guilty before the Principal Magistrate to 3 counts of publishing indecent articles that were not sealed in completely opaque wrappers, contrary to sections 24(1)(a)(iii) and 24(2) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 of the Laws of Hong Kong.  The appellant was fined $20,000 in respect of each summons, making a total fine of $60,000.  The appellant appealed against sentence.  After hearing, I dismissed the appeal on Summonses Nos. 22117/07 and 22119/07, but I allowed the appeal on Summons No. 22118/07 by setting aside the fine of $20,000 and substituting a fine of $10,000.  The reasons for my judgment are set out below.

The facts

2. The admitted facts show that, in a joint operation by the police and the Television and Entertainment Licensing Authority, undercover officers were sent on 5 and 8 March 2007 to three video shops at Ma Tau Wai Road and Temple Street.  They seized a quantity of suspected indecent VCDs that were not sealed in completely opaque wrappers. 146 of those VCDs were subsequently found by the Obscene Articles Tribunal to be indecent articles.

3. The appellant was the supplier of the VCDs in question.  Information about the appellant was also printed on those discs.

Reasons for sentence

4. The Principal Magistrate gave the following reasons for sentence:

The quantity of VCDs involved is not extremely large.  Nonetheless, the defendant is the supplier of those discs, supplying them to three different video shops, as a result of which members of the public (including youngsters who are mentally immature) can have access to scenes of an indecent nature.  The defendant’s culpability is not diminished by reason of the small quantity of the VCDs.

In response to my questions, the defendant’s representative explained the company’s business: the company has a history of 11 years and employs 6 salaried staff members.  It is in the business of supplying adult VCDs, with an annual turnover of $1.5 million.

In the abovementioned circumstances, the only way to deter such offences is, in my view, to render them unprofitable.  Accordingly, I order the defendant to pay a fine of $20,000 in respect of each summons.  I wish to take this opportunity to convey a clear message to the defendant company and the public that it does not yield to contravene the law.

Grounds of appeal

5. The ground of appeal put forward by Mr Sin Tat Ming, the appellant’s representative, is that the sentence is excessive.  He stresses that the company has never committed this type of offence in its 10 years of operation.  He has submitted for my reference copies of covers of VCDs that were seized by the police at the material time but later classified as “not indecent”, pointing out that there is a “grey area” in the criteria for classifying articles and that inadvertent mistakes on the part of the defendant’s employees are inevitable.

6. Mr Sin also submits that the fine of $20,000 far exceeds the fines of $5,000 and $3,500 imposed in previous cases of a similar nature.

The respondent’s reply

7. Mr Lee for the respondent points out that, under section 24(2) of the Control of Obscene and Indecent Articles Ordinance, the maximum sentences for the offence are, on the first conviction, a fine of $400,000 and imprisonment for 12 months and, on a second or subsequent conviction, a fine of $800,000 and imprisonment for 12 months.

8. Mr Lee agrees with the Principal Magistrate’s reasons for sentence that a supplier is more culpable than a retailer and that the quantity of VCDs involved in the present case is not small.

9. Mr Lee has submitted for my reference a list prepared by officers of the Television and Entertainment Licensing Authority, setting out the relevant decided cases in 2006 and 2007 and the sentences imposed therein.  Most of these cases involved retailers or their employees.  Three of the cases involved suppliers, but the quantities of VCDs involved were far smaller than that in the present case.

10. Mr Lee submits that the sentence imposed by the Principal Magistrate is neither wrong in principle nor manifestly excessive.

Judgment

11. I accept that the appellant company committed the offence in question for the first time in its 10 years of operation.  I can understand that the appellant thinks there is a “grey area” in the classification process.  As a matter of fact, however, when the appellant considered the packaging of its VCDs, it concluded that the VCDs in question (146 in total) and the other VCDs seized (40 of them) were all not indecent and therefore did not use completely opaque wrappers to seal those discs.  It turned out that the standard of classification adopted by the appellant was not as strict as that of the Obscene Articles Tribunal, which classified the majority (146 in total) of the 186 VCDs as indecent.  The appellant did not appeal the classification by the Obscene Articles Tribunal but rather pleaded guilty at the magistrates’ court – which means the appellant accepted that the VCDs in question were indecent.  Even though it did not knowingly and intentionally commit the offence, the appellant as the supplier was responsible for ensuring that indecent articles were properly wrapped.  The appellant’s conduct gave youngsters, who were mentally immature, an opportunity to view indecent images.  In the circumstances, a deterrent sentence is warranted.

12. There are no sentencing guidelines for this type of offence, and each case presents its own background and circumstances.  I notice from the materials furnished by the respondent that, in cases which involved 7, 9 and 11 VCDs, other suppliers had been fined $3,500 and $5,000.

13. The quantities of the VCDs involved in the present case are obviously larger than those supplied by others.  In my judgment, taking into account the relevant legislation and the need for a deterrent sentence, a fine of $20,000 in respect of 60 VCDs cannot be said to be excessive; on the other hand, a similar level of fine in respect of 26 VCDs is excessive.  Accordingly, I impose a fine of $10,000 on Summons No. 22118/07.