HKSAR v. TSEUNG LUNG KAN

HCMA 723 & 724/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS. 723 & 724 OF 2001

(ON APPEAL FROM ESCC 1819 & 2055/2001)

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J U D G M E N T

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1. On 27 June 2001, this Appellant, a man in his mid-forties, appeared before Henry Mierczak Esq. in the Eastern Magistracy on two charges 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 to both charges. Both offences were committed at the same shop in Wan Chai. The earlier offence was committed on 29 May 2001. The later offence was committed on 21 June 2001. Each time the obscene articles consisted of VCDs: 2,921 of them on the earlier occasion and 3,066 of them on the later occasion. The articles were obscene but, as the learned Magistrate assessed them, were "at their lower end of the scale" of obscenity.

2. For the earlier offence, the learned Magistrate took a starting point of 18 months' imprisonment and discounted it to 12 months' imprisonment for the guilty plea. The later offence was committed while the Appellant was on bail for the earlier offence. The Magistrate took a starting point of 21 months' imprisonment and discounted it to 14 months' imprisonment for the guilty plea. He made the two terms partly concurrent and partly consecutive so as to arrive at a total of 19 months' imprisonment. He also imposed fines of $20,000 for each offence, making a total fine of $40,000. The Appellant now appeals against sentence.

3. Five Perfected Grounds of Appeal have been filed on his behalf. They read:

"1. The learned Magistrate erred and was wrong in principle to impose total fine of $40,000 on the appellant when the appellant had been unemployed before the commission of the offence and had been relying on public assistance.

2. The learned Magistrate already imposed very long imprisonment sentence, it was wrong in principle to impose heavy fine on him.

3. The learned Magistrate erred to impose such a fine which was beyond the defendant's financial capacity to pay.

4. Alternatively, should the fine be considered appropriate, the totality of sentence when taking the imprisonment term into account was too severe in all the circumstances.

5. The sentence was in all the circumstances too severe and manifestly excessive."

4. Those grounds of appeal raise related considerations, and it is convenient to deal with them together. In HKSAR v. Tang Kam Cheung reported in [2000] 3 HKLRD 516, Lugar-Mawson J said at p. 520:

"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."

I agree. That disposes of the suggestion that it is wrong in principle to impose very long terms of imprisonment and very heavy fines at the same time. In truth, both are often called for.

5. The next question is whether the combination of the prison sentences actually passed and the fines actually imposed is too severe. I am firmly of the opinion that the combination is not too severe. The total sentence imposed is well within the appropriate level, and a fine, to be meaningful in circumstances like the present, should be in the range of the total fine imposed.

6. The final question is whether the learned Magistrate fined the Appellant beyond his means. As to this, the fact that the Appellant was unemployed before the offences were committed and that he was in receipt of public assistance was by no means conclusive on the question as to his ability to meet a heavy fine. The learned Magistrate had to look, as he no doubt did, at all the circumstances. As it happened, when he asked the Duty Lawyer representing the Appellant whether the bail money could go towards the fine, the Duty Lawyer answered 'Yes'.

7. All the grounds of appeal fail, and the appeal is dismissed.