SECRETARY FOR JUSTICE v. MONG HON MING

CAAR 1/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 1 OF 2009

(ON APPEAL FROM ESS NO. 2941 of 2003)

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

Introduction

1.  This is an application by the Secretary for Justice (the applicant), pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of the 6-month suspended prison sentence imposed on 17 December 2008 by Mr Garry Tallentire, Permanent Magistrate sitting at Eastern Magistrates’ Court, on Mong Hon-ming (the respondent), leave to apply having been granted by Ma CJHC on 6 January 2009.

2.  The respondent was summonsed to appear before the Eastern Magistrates’ Court on a charge of publishing an obscene article, namely the feature article in Eastweek Magazine (Eastweek), dated 30 October 2002, volume 521, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 (the Ordinance).  It was not until 3 December 2008, over six years after the offence was committed, that the respondent pleaded guilty to the summons.  A fortnight later, the magistrate imposed the sentence of 6 months’ imprisonment on the respondent which he ordered should be suspended for 2 years.

3.  It is the suspension of the prison sentence with which we are solely concerned in these proceedings.  Mr Zervos SC, on the applicant’s behalf, submitted that it was wrong in principle for the magistrate to have suspended the sentence.  The result he argued, was that the respondent had been left with a sentence which was manifestly inadequate.

4.  The lengthy history of this matter was caused by the publishers who had employed the respondent at Eastweek and other publishers in a closely related case taking a number of issues to the High Court.  It is no criticism of the respondent that he chose to take full advantage of the financial backing he received but by the time this process had ended, the respondent had gained no tangible advantage and is today in precisely the same position that he was in over six years ago.  In summary, a magistrate’s decision in regard to an application for a permanent stay of proceedings led to an application for leave to apply for a judicial review in the Court of First Instance (see: Mong Hon Ming v Secretary for Justice [2004] 2 HKC 219).  Those proceedings were decided in the respondent’s favour on 15 March 2004.  After that, a renewed stay application, which was made in front of another magistrate, was refused.  There then followed an application for judicial review in the Court of First Instance, the purpose of which was to review the magistrate’s decision to refuse the application for a stay of the proceedings.  In this, the respondent was unsuccessful and judgment was given to that effect on 15 November 2005.  (See: Mong Hon-ming v Anthony Yuen HCAL 137/2004).

5.  Thereafter, a lengthy delay was encountered when the respondent’s case was adjourned to await the outcome of a related application by Three Weekly Limited for judicial review.  We shall have more to say about ‘Three Weekly’ in due course but, suffice it to say, there were parallel proceedings of a similar kind against its publisher and Chief Editor, also in the Eastern Magistrates’ Court.  When High Court proceedings were concluded and ‘Three Weekly’s’ case returned to the Magistrates’ Court, there was some further delay as the respondent was still at that time contesting the obscenity of the article which is the subject of these proceedings.  A determination hearing was conducted before the Obscene Articles Tribunal in June 2008 and, in the result, the article was classified as obscene.

6.  The published article with which we are concerned in these proceedings is a photograph of a well-known actress whose picture, showing her naked from the waist upwards, was displayed on the front cover of the “entertainment” section (‘Book B’) of Eastweek Magazine on 30 October 2002.  The magazine was divided into two sections.  The other section (‘Book A’) covered news items.  The photograph was described in the article which accompanied it as effectively having been taken while the actress was in the hands of criminals many years earlier.  It showed her in a very distressed state and plainly she was an unwilling participant in having her photograph taken.

7.  The photograph was reproduced a second time on the inside page where the written article began.  It purported to provide sound reasons for the publication of the photograph.  In truth, there was no good reason for the publication of the photograph or the article and it is perfectly clear that the sole purpose for their publication in Eastweek was to generate additional circulation of the magazine and thereby create greater financial profit from its sales.  There may be occasions when distressing photographs of individuals may be published quite legitimately.  This was plainly not such an occasion when the actress in question had been photographed in a state of undress and under compulsion as the magazine article itself made clear.

Summary of facts

8.  The part of the agreed Summary of Facts in which this feature article from Eastweek is described, reads as follows:

“7.  The subject feature article focused on a photograph to which the heading referred depicted a woman who was naked from the waist up, only her nipples and eyes blurred by photographic process. Her head was bowed. Although the woman was not named, the subject feature article said that the actress was a well known local actress. It was the thrust of the subject feature article that the actress had somehow offended criminal elements in the entertainment industry who had subjected her to the humiliation of being photographed in the way she was depicted. The subject feature article went to some lengths to emphasise the authenticity of the photographic evidence. It was said that it had been taken against the actress’ will and in abusive circumstances. The subject feature article purported to be a morality piece, a warning to aspiring actresses to beware the darker said of the industry.”

To these facts we should add, having seen the photograph in question, that the blurring of the actress’ eyes in no way concealed her identity.

9.  New Media Group Limited had been the registered proprietor and publisher of Eastweek since 17 September 2001.  The registered office of the company was at Emperor Group Centre, 288 Hennessy Road where the respondent was registered as having been the editor since 17 September 2001.  His real title, as he revealed in his interview with the police on 10 March 2003, was Chief Editor of Eastweek.  He held this position between September 2001 and November 2002.  The respondent used a similar title when, following the publication of this article and the outcry which followed it, he was shown as a signatory in Notices of Apology carried by five prominent local newspapers apologizing for its publication.  He was referred to in these notices as “Editor-in-Chief of Eastweek”.

10.  The significance of the registration of the respondent as editor (or Chief Editor) relates to the responsibility placed on such a person, pursuant to section 15 of the Registration of Local Newspapers Ordinance, Cap. 268.  This provides:

“15.  Vicarious responsibility of proprietor, printer, publisher and editor 

  On the trial of the proprietor, printer, publisher or editor of any local newspaper, or the printer of any other document, for any offence in which an ingredient is the publication of matter contained in any issue of such local newspaper or in such document, the accused person shall be presumed to have published all matter contained in such issue or in such document, as the case may be, unless he proves that the publication was made without his authority, consent or knowledge, and that the publication did not arise from want of the due care or caution on his part.” 

The application

11.  Mr Zervos submitted that there was no justification for the suspension of the sentence imposed by the magistrate who, he contended, had not provided any sufficient reason for so doing when imposing sentence. 

12.  Mr Zervos, when illustrating the gravity of the offence, referred us to the English translation of the article relating to the actress’ photograph, in which a crude attempt had been made to portray the article as being in the public interest.  The article was referred to in the Summary of Facts as having purported to be a “morality piece”.  A glance at the article reveals its spurious nature and utter insincerity from first to last and Mr Zervos’ simple point was that the respondent could not possibly have been unaware of what the article was about or the circumstances in which the front cover photograph, to which the article related, was taken. 

13.  With this point in mind, it is not without considerable significance that, in the court below, the respondent had been put forward by leading counsel then representing him as having been out of Hong Kong at the time of publication.  The mitigation the respondent had given to his legal advisers was, as it now turns out, wholly untrue and there can be no doubt that the magistrate was misled on this important aspect of the case.  We shall return to this at a later stage. 

14.  This was, on any view, a highly emotive article about an actress who was well-known to the Hong Kong public.  Mr Zervos contended that it was not only obscene, as defined in the Ordinance, but was, to any right-minded member of society, utterly repulsive in the sense that it showed a picture of the actress which had been taken against her will while she was in a distressed state brought about, apparently, as the result of abuse and humiliation at the hands of criminals.  The prominence of the article was plainly designed to create the maximum publicity.

15.  The front cover itself bore the headline: “Naked and abused”.  The article inside the magazine referred to the “victim actress” as having “lowered eye-lids and distraught expression”, saying that “one could tell that the picture was taken under coercion”.  The article continued, with patent disingenuousness, in these terms:

“Our entertainment industry allows a person to gain fame and fortune with ease, although behind such fame and fortune, one must also pay dearly; ordinary folks may simply not be able to put up with such experience of blood and tears.

A half-naked picture reveals the dark side of our entertainment industry: one actress, who has worked in the entertainment industry for years and despite her enjoying a happy love life and successful career now, has been tormented by a painful experience and living in fear for over a decade. It has been said that working in our entertainment industry is no easy task; this actress' experience should send a warning signal to the young girls who are dreaming of becoming a star one day.”

16.  The article went on to describe at some length how a renowned photographer had verified the photograph as one which had not been “edited or doctored” but was “a reshot of another photo” and, from the expression on the actress’ face, was taken “by force or under threat … Her whole countenance shows that she was in distress, that she was unwilling”.

17.  The article, although not naming the actress, went on to describe her career, her present circumstances and her lifestyle adding: “what she has been through no one could even begin to imagine”.  It was stated that this photograph of a “well-known actress” had been delivered to the Editorial Department of the magazine by “a mysterious person”.  It seemed as if the actress’ photograph, with “her head down and … weeping” was taken in a car.

18.  The article continued:

“A long timer of the entertainment industry who wishes his name be withheld says to this magazine, ‘the entertainment industry looks very glamorous from the outside but there are a lot of things which are difficult for a person to grind her teeth and bear out. This is especially true a few years back when the movie industry was booming; there were a lot of clashes. For years rumours had it not once that a certain actress was dealt with by force and violence. Within the industry the popular version goes like this: the certain actress suffered deplorably that day as a number of her pictures were taken with the threats that they would be circulated in the underground market. However, no one has ever seen any of them.’

The Actress was distressed

It was said that before the pictures were taken, the actress, a spirited young lady with candid character, had unwittingly offended some people which eventually led to the abusive treatment.

Long after the violent incident, the actress has been living in its shadow; although she was disturbed psychologically, she was obliged to put on a happy face in public. This is clear proof of the gloomy side of the entertainment industry and should be taken as a hard lesson by all those young girls dreaming of becoming a star one day.

It was said that the actress had filed a complaint with the police after the incident. It is not known why a picture that was taken in such appalling circumstances would make its appearance after all those years; the motive certainly adds more suspension to the whole episode. …

Psychologist: Victim lives in terror

LEE Bo-nang (inset), a Hong Kong clinical cognitive behavourist, says that, if a woman who is well-known to the public should be forced into having her nude photos or video taken, such experience would appear as rape to her, causing extremely harmful consequences. Not only would she be terrified of social intercourse with people, she would also be afraid of normal sexual intercourse with her boyfriend or husband. The experience would affect her marriage, work, career and even her life.

LEE Bo-nang further explains, ‘the younger the victim when the incident occurs, the more impressionable it will be. Her self-confidence may be reduced to the lowest possible end. The person may act depressed and even suffer an emotional breakdown. She may isolate herself and doesn't want to meet anyone lest she may be reminded of any similar bad memory. A rape victim may be terrified to have any physical contact with men and lovemaking. She may no longer feel capable of performing what she was once able to. Unless she receives therapies, the lingering effects could be huge which may affect her for life’.”

19.  We shall turn to other points raised by Mr Zervos in the course of argument in due course but his prime submission was that the gravamen of this offence lay in the publication in a popular magazine of a photograph which had been taken in circumstances about which the respondent was well aware as the article described these in some detail.  It was not, and could not, he submitted, have been a decision to publish which was taken overnight and it was one that plainly must have involved its Chief Editor. 

Mitigation

20.  We have mentioned already the mitigation first put before the magistrate.  This was at a time when Mr Ching Y Wong SC was representing the respondent.  Mr Wong had been instructed to advance a version of events, when he mitigated on 3 December 2008, to the effect that the respondent had been absent from Hong Kong at the time of publication.  This was a material factor which was obviously intended to reduce the respondent’s overall involvement and culpability in the offence which, at that time, was being represented as having been minimal, amounting almost to a technical breach.  The transcript of Mr Wong’s mitigation speech to the magistrate, when dealing with this point, reads:

  “Your Worship, I think the first matter that has to be dealt with is why this defendant has not pleaded guilty earlier and has waited until now. I understand that – and this is through my conference with him – that there was some misunderstanding as to section 15 of the [Registration of Local Newspapers] Ordinance. We have, in fact, included a copy of that to your Worship. That deals with the vicarious responsibility – vicarious liability of someone in his position.

  The reason is that at the time of the publication – in fact, he wasn’t even in Hong Kong, so he thought that maybe on that basis that there could be a defence raised, that it was not intentional and, perhaps, run the defence that he was only careless.

……

… the defendant was normally involved with Book A, general news, and not Book B, entertainment news, and he admitted he was careless and did not supervise the overall publication more diligently, and this is the vicarious liability. Might I add here, your Worship, that at the time of publication he was, in fact, not in Hong Kong. I can’t remember whether he was in Beijing or Shanghai.

COURT:  I don’t think it makes much difference [i.e. Beijing or Shanghai], Mr Wong.

MR WONG:  It doesn’t make any difference, it’s just for completeness sake. I think I was told that he was in Shanghai.” [Emphasis added]

21.  We will later turn to what, in these proceedings, has been advanced as the true position now that it has emerged that the respondent was not outside Hong Kong at the time of publication.  Plainly, however, the incorrect version which Mr Wong had been instructed to advance was not an error caused by inadvertence on the respondent’s part.  Not only was it not corrected on 3 December 2008, no correction was made on 17 December 2008 when Mr Wong was asked by the magistrate, just before sentence was imposed, if he had anything to add.  The transcript reads:

“COURT:  I take it, Mr Wong, there’s nothing else you wish to add?

MR WONG:  No, your Worship, thank you.”

22.  Amongst the other points raised in mitigation by Mr Wong were the respondent’s plea, his previous clear record and the unlikelihood of the respondent re-offending.  It was pointed out also that the magazine had ceased publication just three days after publication of the issue carrying this obscene article and that there had been notices of apology in other newspapers in which the respondent was identified as a signatory.  In addition, the magistrate was handed a number of letters, which are now also before us, setting out the respondent’s excellent work record and confirming his good character. 

23.  However, most importantly and rising above all the other points in mitigation, it was made abundantly clear that the respondent’s plea had been entered on the basis, as set out in the passages just cited from Mr Wong’s speech in mitigation, of “vicarious liability” rather than any personal involvement in the preparation of the article.  The magistrate was bound, in such circumstances, to have viewed this offence very differently from one where the respondent was demonstrated as having borne heavy personal responsibility for the publication of this article.

Reasons for Sentence

24.  The magistrate recited the key points raised in mitigation, expressly referring to the respondent as having based his guilty plea “on the concept of vicarious liability”.  The magistrate accepted that there was no “international dimension” involved in the offence as Eastweek was published only for local sale.  While that was certainly true, it is worth bearing in mind, as Mr Lawrence Lok SC, on behalf of the respondent, informed us, that Eastweek had a weekly circulation of 60,000 to 70,000 copies and, in the context of this case, the only person who was likely to be severely embarrassed by the article was the famous local resident who was so obviously its focus.  The magistrate also acknowledged that the respondent’s usual work concentrated on general news (‘Book A’) rather than the entertainment section (‘Book B’) where the present article was to be found.

25.  The magistrate continued by stating that while the article was: “obscene and in very poor taste, [it] was far from hard-core pornography” and he found that the respondent’s fault lay in his “failure to supervise and scrutinise the published material as is expected and required of the Chief Editor”.  He went on to state that there were two possible views to be taken of the situation which had arisen, either that the respondent had taken a “very poor editorial decision to publish” or he had “played no part in such a decision” when clearly he should have done. 

26.  With all of these considerations in mind, the magistrate found that the parameters within which a “responsible press” must necessarily work had been breached for no good reason.  As such, and in view of all the circumstances, the magistrate decided that the offence called for a custodial sentence.  Adopting a 9-month starting point, the magistrate reduced this to a term of 6 months to reflect the guilty plea and he then ordered its suspension for 2 years.

Respondent’s submissions

27.  Mr Lok, to whom we are indebted for the candid way in which he has approached his task, placed certain additional material before us which he invited us to admit into evidence under the provisions of section 83V of the Criminal Procedure Ordinance. 

28.  A part of this fresh evidence was concerned with putting the record straight in regard to the respondent’s presence in Hong Kong at the time of the publication.  Whether or not this evidence was obtained as a result of enquires made on the applicant’s behalf from Immigration Department records does not really matter.  It was plainly in the interests of justice to admit this evidence.  The new material included an office memorandum showing the respondent to have been out of his office “from October 22 to 25, 02 inclusive”.  On the present information, therefore, the respondent was in Hong Kong from 26 to 29, some four days prior to the publication on 30 October 2002 which casts a very different light on the respondent’s true position in regard to this article from the way the matter was presented before the magistrate.  Whilst the fresh evidence puts the record straight, we observe at the same time that it was produced without any explanation or any apology for the falsehood told to the magistrate.

29.  As regards the remainder of the material we were asked to admit (labelled Exhibit MHM-1), this was designed to show that responsibility for the draft front covers and the editorial work for ‘Book B’ lay with Senior Editor, Mr Wong Kim-man and Editor Ms Lee Sin-sau, respectively, who were themselves also prosecuted along the same lines as the respondent.  We shall need to say more about their respective positions at a later stage but it is right to say that the material placed before us in this exhibit was again properly adduced and we have decided that it should be admitted into evidence.

30.  Mr Lok placed some emphasis on the fact that the respondent was the only person charged with an offence arising from the publication of this obscene article on whom a prison sentence had been imposed.  Aside from the respondent, on whose behalf it was stated that this offence represented the only serious mistake in his thirty-one years in journalism, the printing company, Dai Nippon Printing Co (HK) Limited and the publishing company, New Media Group Limited, were each fined and Eastweek’s Senior Editor, Mr Wong Kim-man, and Editor, Ms Lee Sin-sau, were each made subject to a Community Service Order. 

31.  In addition, as Mr Lok pointed out, South China Media Limited also published the same photograph of the actress in the ‘Three Weekly’ magazine.  This offence was committed on 2 November 2003, three days after the Eastweek publication.  The publisher was fined and the magazine’s Chief Editor, Mr Ngai See-hoi, was made subject to a Community Service Order.  It was submitted that as the respondent’s sentence of imprisonment had been suspended, this created at least parity of sentencing with the others having responsibility for this publication.

32.  It was further submitted that the respondent had shown himself to have been vigilant in ensuring the integrity of Eastweek ever since that publication was taken over by the Sing Tao Group in May 2003, the respondent having accepted an editorial post there in the same month.

33.  Other matters were also raised along the same lines as the mitigation advanced in the Magistrates’ Court although we were not greatly influenced by the argument that these proceedings have now taken about six and a half years when, as we have said, the decision to prolong the proceedings was ultimately the respondent’s choice.  Furthermore, the reason for the respondent not having pleaded guilty earlier, as the magistrate was informed on 3 December 2008, was based upon an entirely false premise, namely, the belief that he might have a defence in view of his absence from Hong Kong at the material time.  Having said this, we can understand that it might have been difficult for the respondent not to have taken advantage of the legal and financial support he was being given by his erstwhile publisher to pursue various avenues of legal argument which in the end can only have contributed to the stress the respondent has been under all this while. 

34.  Finally, there were two aspects of Mr Lok’s argument which we were unable to accept.  The first of these was that the identity of the actress shown in the photograph would not generally be known as she was not named in the article.  A similar submission was made by Mr Wong in the court below.  The second aspect was the gloss that Mr Lok sought to put on the article by saying that it was intended to serve as a warning about the “infiltration of triad society” into the apparently glamorous world of show business.   Both submissions were untenable.

Discussion

35.  Although the magistrate made reference to this case being “far from hard-core pornography”, the question raised by Mr Zervos was whether this was a matter of any relevance at all in the context of a case concerning a popular journal circulating amongst ordinary members of the public.  It was not, and has never been, suggested that Eastweek was a mildly pornographic magazine which had overstepped the limits.  This related to something completely different.  Here, for all to see and read, was a genuine photograph of a well-established local actress taken in circumstances when, it is accepted, she was plainly in great distress while in captivity at the hands of criminals.

36.  “Obscenity”, for present purposes is defined under sections 2(2)(a) and (3) of the Ordinance.  This provides as follows:

“(2)  For the purposes of this Ordinance-

(a)  a thing is obscene if by reason of obscenity it is not suitable to be published to any person; and

(b)  ……

(3)  For the purposes of subsection (2), ‘obscenity’ (淫褻) and ‘indecency’ (不雅) include violence, depravity and repulsiveness.” [Emphasis added]

37.  The penalties provided for the offence of publishing an obscene article are both financial and custodial, namely, a maximum fine of $1 million and 3 years’ imprisonment, respectively.  We accept Mr Zervos’ contention that the present case represented a grave offence of its kind and that the legislature must be taken as viewing offences of this kind in a serious light having regard to the penalties available.  Here, there was no honest purpose in printing the article.  It has been argued, and we agree, that the sole purpose for the printing of this article, with its prominent display of the local actress on the front cover taken in extreme circumstances of obvious distress, was purely financial.  In doing this, Eastweek and others, including its Chief Editor, showed that they paid scant regard for the dignity and feelings of a woman who was, at the time she was photographed, in a state of undress and was the victim of abuse.  Not surprisingly, there was a public outcry and only after this occurred was an apology printed in the newspapers. 

38.  The apology itself is not without interest.  It was written in terms which accepted that the article was “totally wrong” and stated that the publishers would “punish those who were responsible and account to the public”.  However, it is difficult to see that any punishment was in fact carried out having regard to the respondent’s reinstatement only a few months later under the new management which took over Eastweek.  Nonetheless, we recognize, at least to an extent, the fact that the respondent had at least come clean and admitted his wrongdoing when attaching himself to the apology in the press.

39.  This being said, in the light of what has now emerged, it appears that the respondent’s remorse was extremely shallow.  Whilst it is true that the admission of guilt made by the respondent in the newspapers became eventually, over six years later, an admission of guilt in court, this came about only after all legal manoeuvres had been exhausted.  Even then, however, the respondent was not prepared to face up to reality or to put a truthful account of his involvement in this publication before the court.  Instead, he falsified his account by trying to avoid any moral blame by saying that he was thousands of kilometres away at the time of publication.

40.  On the material which was placed before the magistrate, there was, in our opinion, an ample basis for the magistrate to have decided that this case called in principle for a sentence of imprisonment and, very sensibly, Mr Lok has not sought to argue otherwise.  However, when considering the propriety of the magistrate’s decision to suspend that sentence, we are immediately able to see what it was that caused him to do so.  This was, as the magistrate put it:

“… because of the mitigation [the respondent’s counsel had] referred to …”

and the magistrate indicated, as we have said, that an important feature of this was that the plea of guilty had been based on the “concept of vicarious liability” and that the respondent’s “fault” lay in his “failure to supervise and scrutinise”.  We consider that the magistrate would have been justified in suspending the sentence if such a basis had existed but he had been seriously misled by the mitigation the respondent had instructed his lawyers to put forward.

41.  Mr Zervos’ argument was that, even putting aside the false mitigation which had been advanced, none of the points raised on the respondent’s behalf amounted to what might properly be termed exceptional circumstances, for an offence of this seriousness, as envisaged in Attorney-General v Yeung Kwong-chi [1989] 1 HKLR 266, R v Okinikan [1993] 1 WLR 173 and Secretary for Justice v. Lau Cho-man, CAAR 8/1997, to take but some of the examples in which the approach to be adopted by the courts towards the suspension of a prison sentence is set out.  In particular, a plea of guilty and previous good character are not factors which, by themselves, will justify suspending a sentence of imprisonment.  Mr Zervos also laid understandable emphasis on the fact that other so-called mitigating circumstances, such as this not being a case involving hard-core pornography or one which had an international element, were in reality only illustrations of the absence of factors which, in different circumstances, might have aggravated the offence.

42.  In our opinion, the single most important factor, which cannot be ignored, was that the magistrate was led to understand, and in the end accepted, that the respondent was vicariously liable for the acts of others at a time when the respondent himself was in the Mainland.  As we have indicated, he was entitled on this basis to have adopted the course he considered the most just, by suspending the sentence.  In effect, what had been said in mitigation was that another editor, Mr Wong Kim-man, had been responsible in the respondent’s absence for the part of Eastweek which contained this article (Book B).  This leads us to the question of parity of sentencing in the context of others who were prosecuted arising from the publication of the same article.

43.  Two other editors at Eastweek were directly responsible for the “entertainment” content in Book B.  They were Mr Wong Kim-man, the Senior Editor who was ordered to perform just 180 hours of Community Service following his plea of guilty and Ms Lee Sin-sau, the editor, who was made subject to a Community Service Order of 200 hours, having contested the case at trial.  Mr Wong’s sentence was imposed on 5 January 2009 and Ms Lee’s sentence was passed three days later on 8 January 2009.  Both of them had played an active role in the preparation of the article but both of them were sentenced after the respondent.

44.  The argument advanced by Mr Lok, to the effect that a disparity in sentence would arise if the respondent’s sentence were to be altered to one of immediate imprisonment, was not, in our view, one which was well-founded as we were informed that the magistrate who dealt with the two other editors was presented with a Summary of Facts which indicated that the respondent, the Chief Editor, had been present at meetings prior to this publication.  In such circumstances, the other magistrate, dealing with Mr Wong Kim-man and Ms Lee Sin-sau, would have been acutely conscious of the fact that the Chief Editor, their superior at Eastweek, had escaped with a suspended sentence.  It would clearly have been viewed as most unjust to have sent the respondent’s subordinate editors to prison when he, as the Chief Editor, had only received a suspended sentence.

45.  There was a further complication in that, following the plea of guilty by Mr Ngai See-hoi, the Chief Editor of ‘Three Weekly’ magazine in proceedings relating to the re-publication of the photograph of the actress, he was sentenced on 9 March 2009 to perform 120 hours of Community Service.  If anything, his offence, as Mr Lok had sought to argue, might be seen as having been even more serious than Eastweek’s publication as there was, at first sight, the aggravating factor that Three Weekly’s publication occurred on 2 November 2003 (the same day that the respondent and others were publicly voicing their apology in the daily press), after there had been a public outcry at Eastweek’s publication. 

46.  In fact, having viewed the article in ‘Three Weekly’, we have been able to observe for ourselves that it was not an article which even began to approach the same league of gravity as the Eastweek article and the photograph, whilst it was reproduced in that magazine, was small in size and so heavily edited that the damage done was relatively small.  In the light of the nature of this article and the suspended sentence given to the Chief Editor of Eastweeek for an article which was far worse, the sentence recently imposed on Mr Ngai See-hoi was not open to justified criticism.

47.  Returning, therefore, to the respondent’s position, his moral culpability has now emerged as being far greater than was at first admitted by him when he appeared before the magistrate.  It was, in effect, the respondent’s false claim that he bore no moral blame for what had occurred which gave him the benefit of a suspended sentence.  But for this, we have little doubt that the magistrate would not have suspended his sentence.  This was a case, when all is said and done, which stands in a category of its own.  The very idea that any responsible member of the press would contemplate publishing, under the guise of public interest, for that is all it was, a story of this kind, illustrated by photograph of a half naked woman, taken when she was a victim of abuse, almost defies belief.  This was, of its kind, a uniquely serious offence calling for condign punishment. 

48.  As matters now stand, we are in no doubt that the suspension of the respondent’s sentence has left the respondent with an unduly lenient sentence.  Furthermore, had the true extent of the respondent’s guilt not been masked by a false account of his involvement and had the truth been known when the respondent appeared before the magistrate, we are satisfied that it would have been wrong in principle to have suspended the sentence.  As matters stand, however, we make no criticism of the magistrate who was misled by the respondent as to the true circumstances of the offence.

Conclusion

49.  Accordingly, we shall allow this application.  We quash the order of suspension imposed by the magistrate.  Taking into account the nature of these proceedings, and the fact that the respondent has no one to blame but himself for what has happened, particularly as he was present when mitigation he knew to be false was advanced by his counsel and he did nothing to correct it, we shall only slightly adjust the 6-month sentence imposed on him by reducing it to 5 months’ imprisonment.  The respondent must now serve that sentence.