YU FAI TAT v. HKSAR

FACC No. 1 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2004 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 774 OF 2003)

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J U D G M E N T

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Mr Justice Bokhary PJ :

1. At the conclusion of the hearing we announced that, for reasons to be handed down later, the appeal was allowed so as to substitute for the sentence imposed by the appeal judge the sentence originally passed by the magistrate. We now hand down our reasons which are those given by Sir Derek Cons NPJ.

Sir Derek Cons NPJ :

2. Obscene Articles Tribunals have an exclusive jurisdiction to determine, inter alia, the question whether any article is obscene or indecent : Section 29(1)(a) Control of Obscene and Indecent Articles Ordinance Cap.390 ("the Ordinance"). Subsection (2) then provides :-

"Subject to subsection (3), where in any civil or criminal proceedings before a court or magistrate a question arises as to any of the matters mentioned in subsection (1), that court or magistrate shall refer that question to a Tribunal; ..."

and ss (3) :-

"Where in any civil or criminal proceedings before a court or magistrate a person admits that an article is obscene or indecent or that any matter publicly displayed is indecent the court or magistrate may accept that admission and so find against that person, and subsections (1) and (2) shall not apply."

3. Thus, where a person is charged with an offence which involves this question the ensuing trial, if the person pleads not guilty, will necessarily comprise proceedings in two separate courts. This will not however happen if the person pleads guilty, unless for some reason the court or magistrate declines to accept the admission implicit in the plea.

4. In July last year, the appellant, Yu Fai Tat, pleaded guilty in the Eastern Magistracy to possession of obscene articles for the purpose of publication contrary to s.21(1)(b) of the Ordinance. He was represented under the Duty Lawyer scheme. He admitted the Summary of Facts which was read out and which indicated that the articles in question were obscene, albeit they were later accepted as being toward the lower end of the obscenity scale. The appellant had been arrested when hawking DVDs and VCDs from a small shop in Wanchai Road. His stock was considerable, some 1262 and 2736 respectively. In passing sentence the magistrate adopted a starting point of 15 months, reduced that to 10 months for his plea of guilty and then gave :

"a further 2-month reduction because he admitted the obscenity of the discs, without requiring their examination and determination by the Obscene Articles Tribunal."

At the same time, the magistrate imposed a fine of $20,000, which was taken from the bail money.

5. There was some disagreement before us as to how commonly given are further discounts of the kind thus given by the magistrate. Certainly it was not an isolated instance. For example, in a passage quoted in HKSAR v. Wong Chun Kai HCMA 1005/03, a magistrate from the same Eastern Magistracy, referred to it as "his practice".

6. The appellant appealed to the High Court. We understand from counsel that it was made clear to the judge seized of the appeal that the real complaint was that the fine had been imposed without proper enquiry as to the means of the appellant. In any event it is common ground that no point was taken by either side or by the judge as to the 2-month discount for the admission of obscenity.

7. The judge reserved her decision. By the judgment handed down 10 days later the judge rejected any suggestion that the combined imprisonment and fine was manifestly excessive or that insufficient enquiry had been made as to the appellant's means; she was satisfied that the starting point adopted by the magistrate had been appropriate, but then added :

"However the Magistrate was incorrect in reducing the sentence by another 2 months because the Appellant had admitted the obscenity of discs. That matter is taken account of by the one-third discount for the plea of guilty."

She therefore allowed the appeal and increased the sentence by that amount, leaving the fine as it stood.

8. These circumstances raise two questions which merit the consideration of this court :-

(1) Was the further discount given by the magistrate appropriate? and

(2) Should the judge have given the appellant an opportunity to address her on the question before she made her decision to increase the sentence?

9. As to the first question, there are several factors that have influenced courts to the policy of discounting sentences by reason of a plea of guilty. But the most influential are in general the saving of judicial time and dispensing with the need for the attendance and examination of witnesses. These factors may of course vary greatly between individual cases, both in quantity and quality. A complex fraud may take far longer to try than a simple possession of drugs; the victim of a theft is unlikely to suffer the trauma that a rape victim may undergo in having to give evidence in open court. Nevertheless a standard one third discount is customary nowadays. It is by no means an absolute figure, and courts will vary it for good reason. Examples of reason to increase that we have been referred to are full and early restitution of large sums of stolen money : HKSAR v. Leung Shuk Man [2002] 3 HKC 424 and the giving of evidence by an accomplice : HKSAR v. Chan Sau Hing CACC 211/2001. There are also the well known "supergrass" cases.

10. It has been suggested faintly, by vague reference to the referral provisions of the Ordinance and the two factors we have just mentioned, that cases which would otherwise require referral do also, in themselves, merit further discount. We are unable to accept that suggestion. Although the need to refer a disputed case might well delay the eventual conclusion, the actual overall judicial time spent in hearing and reviewing the evidence would be the same.

11. Furthermore, where there is a plea of guilty the referral provisions do not come into play at all. We do not read ss 3 to impose any further requirement on the magistrate. So long as he or she observes the normal safeguard of being satisfied that the defendant understands what he is doing the magistrate should proceed immediately to deal with the case. If, however, it should appear then that the defendant does in fact contest the issue of obscenity or indecency the magistrate must of course refer to the Tribunal. But should the Tribunal's decision go against the defendant, he could not normally on his return to the magistracy expect the full discount, for his plea has dispensed with only part of the trial.

12. Our answer to the first question is therefore "no". The practice of giving further discounts in the circumstances discussed, in so far as the practice does exist, should no longer be continued. As to this question the judge below was right. As to the second question however, we have to say with respect that the judge below was wrong. It hardly needs repeating that one of the most fundamental principles of natural justice is that no man shall be condemned unheard, that he shall be given the opportunity to have his say.

13. But it is submitted that although not given an express opportunity by the judge the appellant did in fact have an opportunity to deal with the question. Our attention is drawn to the words appearing above his signature on his initial Notice of Appeal :-

"I am aware that the judge has power under section 119 of the Magistrates Ordinance to either increase or reduce the sentence."

14. We are then referred to the comments of this court in Chau Ching Kay v. HKSAR (2002) 5 HKCFAR 540, where a similar point was taken with regard to a loss of time order imposed by the Court of Appeal. This court was satisfied, having regard to several warnings that had featured in documents leading up to the appeal (at p.567):

"that these warnings are sufficient to bring home a firm message to them that they stand to lose in making totally unmeritorious applications."

15. We note however that this court was very heavily influenced by the fact that at that stage of the proceedings the Court of Appeal would almost invariably be in possession of all the material appropriate to its decision. We note also that that decision would normally turn upon one question only, the lack of merit in the appeal. There may be many different considerations pertinent to an increase of sentence. We are not persuaded that this simple reminder of that power in the court was a sufficient substitute for an actual opportunity to address these considerations.

16. Then it is said that even if the appellant had been given the proper opportunity the result would nevertheless have been inevitable.

17. We take leave to disagree. Had the judge below been satisfied that there did exist a practice of further discount, we would not have expected her to strike out the practice, as it were, retrospectively but to lay down instead guidance to magistrates in the future. Or the judge may have been persuaded that nevertheless, on overall consideration the final sentence was not in fact manifestly inadequate and ought not to be disturbed.

18. It was for these reasons we concluded that we had no alternative other than to allow the appeal and restore the sentence of the magistrate, as we mentioned at the beginning.