HKSAR v. CHAN MUN TONG

HCMA1350/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1350 OF 2000

(ON APPEAL FROM ESCC 4727 OF 2000)

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J U D G M E N T

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1. This is an appeal against sentence. Although the appellant urges upon me that the sentences imposed by the learned magistrate were too severe, he is primarily concerned that he was fined in addition to being sentenced to a period of imprisonment.

2. The appellant was convicted on his own plea at Eastern Magistracy of an offence of publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390 and an offence of possession of such articles for the purpose of publication, contrary to section 21(1)(b) of that Ordinance. He was sentenced to 10 months' imprisonment in respect of each offence, such sentences to be served concurrently. He was also fined $5,000 in respect of each offence.

3. The facts of the offences are quite common and increasingly familiar to the courts. An undercover police officer went to a shop run by the appellant at 188, Wan Chai Road in the Oriental Shopping Centre.

4. That address, as the learned magistrate said in his findings, is notorious for the sale of obscene articles such as those the subject of the offences and, yesterday, I dealt with another appeal from precisely that address in respect of precisely the same offences.

5. The undercover police officer purchased five offending video discs from the appellant, and subsequently the premises were searched. A further 2,212 video discs were seized from the premises.

6. The five purchased discs and 30 discs randomly selected from those seized were viewed. They contained scenes of explicit sexual acts of males and females with particular focus on the participants' sexual organs.

7. The learned magistrate took a starting point of 15 months in respect of each offence. In my view, that starting point of sentence cannot be said to be too high. The learned magistrate in adopting that starting point of sentence took into account that this particular trade has continued to flourish even given the fact that custodial sentences have been imposed on offenders for some years. The magistrate also took into account the prevalence of the offence within his jurisdiction. He was entitled to do so.

8. He then turned to what had been advanced before him in mitigation. The only substantial matter in that regard was the appellant's plea of guilty. On that basis, the magistrate reduced the starting point of sentence and imposed a sentence of 10 months in respect of each offence. Given the circumstances of the offences, he ordered both sentences to be served concurrently. That was entirely proper. The sentences of imprisonment imposed or their totality cannot be criticized.

9. Indeed, in respect of this appeal, the appellant's primary objection to the sentences imposed upon him is that he was fined in addition to the sentences of imprisonment. Those fines amounted to a totality of $10,000 for the two offences. Given the profits apparently to be obtained from the sale of these articles, that level of fine in my view, cannot be said to be too high. A fine in the circumstances of these offences, which are themselves profit-orientated, is designed to bring home to an offender the simple message that crime does not pay and, at least in some part, prevent him from retaining the profits of those offences.

10. In the present case, the magistrate was certain that the appellant could afford the fines imposed by way of the provision of his bail monies. That was ascertained through the appellant's lawyer who represented him before the magistrate.

11. In my view, there can be no criticism of the sentences either of imprisonment or fines imposed by the magistrate. The appeal against sentences is dismissed.