HKSAR v. POON WING YAN

HCMA 693/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 693 OF 2001

(ON APPEAL FROM TWCC 806/2001)

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J U D G M E N T

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1. This Appellant appeals against a sentence of 18 months' imprisonment passed on him by Ms J M Livesey in the Magistrate's Court at Tsuen Wan on 18 June this year. That was the total sentence which he received on four charges under the Control of Obscene and Indecent Articles Ordinance, Cap.390, to which he had pleaded guilty. Charges 1 to 3 were of publishing obscene articles contrary to section 21(1)(a). Charge 4 was of possession of an obscene article contrary to section 21(1)(b). All the articles were video compact discs. Two discs were involved in Charge 1. All of the other charges involved 1 disc each.

2. What the Appellant did was as follows. He made obscene discs from obscene material which he found on the Internet. He then sold some of the them to customers who responded to his advertisements on the Internet. He also gave them as prizes in competitions on the Internet which he devised. He did not make much money through these sales, only about $400.00 it seems. What was serious, and it was extremely serious, was the nature of the obscenity involved. It was of child pornography.

3. Describing the discs, the Magistrate said this in her Reasons for Sentence:

"Briefly they show sexual acts being done on children by adults and also by other children, and sexual acts being done on adults by children. There is also one where bondage is taking place on a child. From the photographs it would appear that the children are aged between 12 years and about 6 or 7 years. All the pornography involves children."

4. The Perfected Grounds of Appeal against Sentence filed on the Appellant's behalf read as follows:

"The Magistrate's sentence of 18 months' imprisonment was both manifestly and excessive and wrong in principle for the following reasons in that she :

1. Failed to have regard to the totality of the sentence.

2. Failed to properly consider the mitigation that was put forward.

3. Although serious this case is far from the worse case of its kind."

5. Ground 1 is without foundation. The Magistrate passed a sentence of 6 months' imprisonment on each of the four charges. If all those sentences had been made wholly consecutive, the total sentence would have been 2 years' imprisonment. The Magistrate arrived instead at a total of 18 months' imprisonment by making the sentences partly consecutive and partly concurrent. The reason for that must have been to give effect to the totality principle.

6. As for Ground 2, I do not think that it is made out. The only mitigation of substance was the Appellant's guilty pleas and his clear record. The Magistrate said that she gave him full credit for those matters. There was nothing of substance in any of the other matters put forward as mitigation on the Appellant's behalf. Indeed one of those matters was, if anything, aggravation. It was said that he did not know that the activity involved was illegal until he was so informed by a friend in mid-October 2000 and that he then stopped immediately. The offences under Charges 2, 3 and 4 respectively were committed in November 2000, December 2000 and March 2001 respectively.

7. As for Ground 3, it is nothing to the point that the case is far from the worst of its kind. The Magistrate never said that it was anywhere near the worst of its kind. Indeed, she quoted a case in which the obscene material was, as she said, "even more repulsive" than the material in the present case. There a sentence of 21 months' imprisonment was imposed. Here the sentence was one of 18 months' imprisonment. The sad fact is that the courts have come across far worse cases of this kind, but the undeniable fact remains that this is nevertheless a very bad case. Ground 3 also fails.

8. In my judgment, the learned Magistrate passed a severe sentence but not one which was so severe as to justify my interfering with it. The appeal is therefore dismissed.