HKSAR v. LEE CHI KEUNG

HCMA 514/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 514 OF 2004

(ON APPEAL FROM ESCC 1931/2004)

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REASONS  FOR  JUDGMENT

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1.  The Appellant was charged with one count of Possession of Obscene Articles for the Purpose of Publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390.  He pleaded guilty in the Magistracy and was sentenced to 12 months’ imprisonment, together with a fine of $20,000.00, in default of payment thereof 3 months’ imprisonment.  He appeals against the sentence imposed on him.  He was represented both at the hearing in the Magistracy and on appeal.

2.  The perfected grounds of appeal were:

(1) The magistrate erred in taking a higher than usual starting point of 18 months’ imprisonment, because the Appellant had not committed an offence of a similar nature in the past.

(2) The Magistrate failed to consider adequately, or at all, that the amount of the fine imposed constituted a substantial part of the Appellant’s assets and the amount was manifestly excessive.

(3) The Magistrate erred in imposing 3 months’ imprisonment in default of the payment of $20,000.00 by the Appellant and failed to consider that the additional 3 months’ imprisonment made the total sentence manifestly severe and excessive.

Facts

3.  The facts admitted by the Appellant at the hearing, showed that he was sitting at the cashier counter near the entrance of a shop in a shopping arcade in Wanchai.  He was offering to sell 5 DVDs for $100.  A search warrant was executed and 1,525 VCDs and 359 DVDs were seized.

4.  Under caution, the Appellant admitted the offence.  Randomly selected VCDs and DVDs showed scenes of oral sex and explicit sexual acts between males and females with particular focus on sexual organs.

5.  In sentencing, the Magistrate considered it appropriate to take a higher than usual starting point for sentence.  His first reason for doing so was that the offence was committed at a shopping centre notorious as a venue for the sale of obscene discs, that particular shop being the most notorious of the outlets in that shopping centre.

6.  The second factor was that the Appellant had 31 previous convictions, which included 2 offences for selling infringing copyright works and was regarded by the Magistrate as a persistent offender, albeit he had not been convicted previously of possession of obscene articles.

7.  The Magistrate considered that a financial penalty in addition to imprisonment was appropriate.

8.  The Magistrate made enquiry about the Appellant’s ability to pay a fine and heard evidence on that point.  He was satisfied the bail money of $25,000.00 was the Appellant’s to dispose of as he wished. 

9.  The Appellant gave evidence that he had borrowed the money from a man whose full name he did not know.  He was a fruit seller and the Appellant said there was no formal documentation in relation to the loan.

10.  The loan was said to be a matter of trust between him and the lender, the man whom he knew only as “Kwan Chai”.  He said that he was living on a welfare benefit of $1,000.00 a month and had no other source of income.  He had no idea whether he could contact the lender, but was going to rely on a chance meeting.  On the day that he claimed he had received the bail money from Kwan Chai, somebody had told Kwan Chai where he could find the Appellant.

11.  The Magistrate did not accept that the money was a loan from “Kwan Chai” and was satisfied that the money was the Appellant’s to dispose of as he wished.  He took the starting point as 18 months’ imprisonment and gave a full discount for the plea of guilty, which resulted in a sentence of 12 months’ imprisonment.

12.  He considered that in the circumstances the offence warranted not only a higher starting point, but a fine in addition to the sentence of imprisonment. 

13.  The Respondent submitted that the usual starting point for an offence of this nature is between 12 and 18 months and in adopting an 18 months’ starting point the Magistrate was not out of that range.

14.  Counsel for the Appellant submitted that the purpose of a fine for this sort of offence was to take away any profit that might be gained by a criminal in the commission of the offence.  The Appellant was only an employee, lived on public assistance and the bail money was a loan.  He contended the Magistrate failed to consider that the amount was a substantial one for a person in the low-income range. 

15.  Having considered the circumstances of the case and the Appellant’s record, I am satisfied that the Magistrate was justified in taking a higher starting point and, further, that he was entitled to impose a fine in addition to the sentence of imprisonment.  These sentences are intended to be deterrent sentences.

16.  As for the 3 months in default, under section 68 of the Magistrate’s Ordinance, Cap. 227, where a fine imposed does not exceed $25,000.00, the term of imprisonment in default of payment shall not exceed 3 months.  The Magistrate was exercising a discretion within the power given by section 68.

17.  Even if the Appellant chose not to pay the fine, the overall sentence is still only 15 months.  That does not exceed the maximum sentence for this particular offence.

18.  For these reasons, the appeal is dismissed.