HKSAR v. LAM CHEUNG SHUN

HCMA 952/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 952 OF 2001

(ON APPEAL FROM ESCC 2058/2001)

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D E C I S I O N

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1. This Appellant was convicted on his own plea of one count of Possession for the Purpose of Publication of 2,326 obscene VCD's, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390. He was sentenced to 12 months' imprisonment on that charge. At the same time he pleaded guilty, in a separate case, to a charge of Possession of Dangerous Drugs and was sentenced to 6 months' imprisonment, of which 2 months were to run consecutively to the 12 month's imprisonment.

2. The Appellant appeals against the sentence of 12 months of imprisonment. His plea, on the first case, was based on the brief facts, which were not unusual. The Appellant was found in a shop selling VCDs. He admitted in his cautioned statement the tapes were indecent. They showed explicit sexual acts between males and females with particular focus on their sexual organs.

3. Given that description, and given the starting point the Magistrate adopted when sentencing, it is apparent that, although he did not specifically state it in his Reasons for Sentence, he treated the tapes' content as being at the lower end of the scale of obscenity.

4. The Appellant was not a man of clear record. His record showed seven conviction items; six of them for Possession of Dangerous Drugs for which he had been sentenced to minor prison terms or fines, and, in 1994, for a case of Using a False Instrument, he had been sent to DATC.

5. The Magistrate, before he sentenced, obtained a DATC report which confirmed that although the Appellant was drug dependant, he was not a suitable candidate for the Drug Addiction Treatment Centre programme. There was no mitigation apart from the Appellant's plea, a very late plea, to the offence.

6. The Magistrate, despite the lateness of the plea, gave the full one-third discount and decided that after trial a sentence of 18 months in prison would have been correct for the charge of Possession for the Purposes of Sale.

7. It was argued that the Magistrate, in imposing that 12 months' imprisonment, failed to consider or assess the nature of the obscene material and that it was a fundamental principle that a sentencing court should assess the degree of obscenity. There is no substance in that ground. The degree of obscenity can be admitted or proved and in this case the degree of obscenity was admitted by the Appellant and confirmed by the officers who viewed random tapes.

8. The other ground of appeal was that the Magistrate, in imposing the 12 months sentence, failed to consider that the Appellant had no similar convictions prior to this one and was therefore not a persistent offender in terms of the selling of VCD's.

9. I was referred to various cases starting with AG v Chau Kun Lap [1996] 2 HKC 60 and referred to the decision of Woo J in HKSAR v Suen Shun Wing [2000] 2 HKC 319 where Woo J takes an overview of similar cases to that time, which was February 2000.

10. Overall, the purpose of these sentences is deterrent. The starting point after trial, even for people of clear record and for material of a low degree of obscenity, is in the region of 12 to 18 months' imprisonment. In this particular case, the quantity of VCD's, although not very substantial, was significant.

11. The Magistrate noted that the Appellant could not be treated as a man of clear record and took 18 months as the starting point after trial.

12. Having considered the instant facts and the previous cases, I am of the view that a lower starting point could reasonably have been taken in this case because it was a first offence of its type for this particular offender, because of the low level of obscenity and also because the number of VCD's was not in the highest range. The deterrent purpose of this sentence could have been achieved by a starting point of 12 months' imprisonment.

13. Accordingly, I allow the appeal to the extent of taking a starting point of 12 months' imprisonment, discounting it by the amount agreed by the Magistrate, which is one-third, and sentencing Appellant to 8 months' imprisonment to be served consecutively to the 2 months imposed on the dangerous drugs charge.