HKSAR v. LAU WAI KEUNG

HCMA224/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.224 OF 2006

(On Appeal From KTCC 987 OF 2006)

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J U D G M E N T

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1. The appellant was convicted on his own plea to one charge of ‘publishing obscene articles’, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance (Cap.390) (Charge (1)), and one charge of ‘possession of obscene articles for publication’ contrary to section 21(1)(b) of the same Ordinance (Charge (2)).  For Charge (1), he was sentenced to 4 months’ imprisonment.  For Charge (2), 10 months’ imprisonment plus a fine of $5,000.  Both prison terms are to run concurrently.  He now appealsagainst the sentence on Charge (2) only.

The facts

2. These are the facts on which the appellant entered his pleas :

“1. On 2006-01-12, officers of MKDIST conducted an anti-obscene article operation at Room 1606, President Commercial Centre, 602-608, Nathan Road, Mongkok.  PW1-2 were assigned as police agents and one HK$ 100 note (S/N CB 288714) was given to PW1 as marked money.

2. At 1550 hrs on 2006-01-12, PW1-2 arrived Room 1606, President Commercial Centre, 602-608, Nathan Road, Mongkok.  Upon reaching the location, the deft entertained them to enter the premises.  Lots of obscene DVDs were displayed inside the flat and the deft asked them to choose.  Eventually, PW1 purchased 7 obscene DVDs (Exh.1) and gave the marked money (Exh.2) to the deft as payment.  PW2 revealed his police identity and arrested the deft.  (Offence 1)

3. Police party later attended scene for reinforcement.  Having searched the location, PW3 seized a total of 8,880 DVDs and some other exhibits (Exh.4-9) inside the flat.  (Offence 2)

4. Under caution, the deft admitted both offence1-2.

5. PW3 later watched Exh.1&3 and confirmed them to be obscene DVDs.  The said DVDs depicted without mosaic effect:-

· sexual intercourse between man & woman;

· oral sex;

· sex organ.”

The magistrate’s reasons

3. They go as follows :

“….There is no aggravating feature by reason of the nature of the obscenity but there were a substantial quantity of discs involved in the 2^nd count.  The Appellant has been before the court on 9 previous occasions of which 2 appearances have related to matters of a similar nature.

There is ample authority that directs that offences of this nature are prevalent and that immediate custodial sentences are appropriate even for first offenders of young age, when training centre may be appropriate.  The starting point is 9 to 12 months for first offenders.  In the circumstances of this defendant I considered that a starting point of 15 months was appropriate for the 2^nd charge and I gave him full credit for his pleas of guilty.  No other matters were put in mitigation that in my judgment warranted any further reduction in sentence.  I directed that both the sentences were to run concurrently, as they arose out of the same incident.  I also imposed a fine as substantial profits are made as a result of these offences.  I ordered that the fine was to be paid after his release from custody.”

The present appeal

4. Before me, the appellant has two complaints.  The first concerns the length of the 10-month term.  He says he knows fellow inmates who have been given much lighter sentences for the same offence.  The second complaint concerns the fine which, in the appellant’s eye, amounts to punishing him twice. 

5. Neither of these complaints has any merit.

6. It has been decided in HKSAR v. Chan Mau-lung [2003] 4 HKC 202 that the usual starting for the offence in question is 9 to 12 months.  For cases involving a very large number of offensive articles sold in shop premises, however, a higher starting point should be adopted.  In the case of Chan itself, a 12-month starting point was considered appropriate for the defendant manning a makeshift stall with 98 VCDs in Temple Street.  It must follow that the starting point in this case is not excessive.

7. As regards the fine, all I would say is it is stated in HKSAR v. Tang Kam Cheung [2000] 3 HKLRD 516 at 520 that :

“There is a clear need for a firm response against those who peddle in pornographic VCDs.  The message needs to be sent out to offenders and their legal advisors that stern penalties, involving imprisonment for meaningful periods and fines, will be imposed.”  (my emphasis)

Judgment

8. The appeal is dismissed.