HCMA000641/1990
Magistracy Appeal No. 641 of 1990
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HEADNOTE
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OBSCENE PUBLICATIONS - 18 YEAR OLD EMPLOYEE IN CHARGE OF VIDEO SHOP - HEAVY FINE INAPPROPRIATE - DETERRENT SENTENCE NECESSARY - TRAINING CENTRE ORDER SUBSTITUTED.
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 641 OF 1990
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BETWEEN
THE QUEEN
Respondent
AND
LAM Wing-ching
Appellant
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Coram: Hon. Bewley J. in Court
Dates of hearing: 23 and 31 August 1990
Date of delivery of judgment: 31 August 1990
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JUDGMENT
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1. The appellant pleaded guilty before Mr Todd in Fanling Magistrates Court to two charges of publishing an obscene article and to one charge of possession of an obscene article for the purpose of publication, contrary to section 21 (l) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. He was fined $25,000 on each charge and allowed 14 days to pay.
2. The articles in question are video tapes. The facts admitted reveal that police officers in plain clothes, acting on information, visited a Video Centre in Taipo on successive days and purchased seven video tapes from the appellant. The appellant was later arrested and a further 72 tapes were seized in the shop.
3. The titles and the descriptions given by the police indicate that the tapes contain material of the most obscene kind, namely simulated rape, intercourse with animals, homosexuality and group sex.
4. The appellant is 18 and has a clear record. He appeared in person and had nothing to say in mitigation. He was asked who owned the shop but claimed that he did not know his employer.
5. The maximum sentence for these offences is a fine of $1,000.000 and imprisonment for 3 years.
6. In A.G. v. Tang King-ming (1986) HKLR 210. The Court of Appeal refused to review a bind over for possession of obscene video tapes, but laid down the following guidelines:
"Learned counsel for the Crown very fairly conceded that this might not be the best case for a review under this legislation. However, in view of the diversity in the scale of sentences imposed by different magistrates he asked this Court, whether allowing or refusing to review the present case, for some guideline. He produced a list of sentences imposed in other cases of similar nature for the period between October 1984 and January 1985. Upon perusal it appears that no sentence of immediate imprisonment have been imposed. Sentences at the lower end of the scale varied from a fine of $1,000 in respect of 4 tapes to $2,000 for 34 tapes, 1 reel of 8 mm film and 19 magazines and at the higher end to a penalty of $14,500 for 71 offensive tapes and suspended prison sentences couple with fines in two cases.
Our attention was drawn to the case of Holloway (1982) Crim App. R (S) 128 (on sentencing ).In that case the appellant was convicted of 6 offences of having obsene arteces for publication for gain. He was sentenced to 6 months imprisonment in total. The obscene and objectionable material contained in the film in that case consisted of sexual perversions like fellatio, cunnilingus and the like. Dismissing the appellant's appeal against sentence Lawton, L.J. as he then was said as follows at page 131 :
'In the judgment of this Court, the only way of stamping out this filthy trade is by imposing sentences of imprisonment on first offenders and all connected with the commercial exploitation of pornography : otherwise front men will be put up and the real villains will hide behind them. It follows, in our judgment, that the salesman, projectionists, owners and suppliers behind the owners should on conviction lose their liberty. For first offenders sentences need only be comparatively short, but persistent offenders should get the full rigour of the law. In addition courts should take the profit out of this illegal filthy trade by imposing very substantial fines.'
This passage of Lawton, L.J.'s judgment was considered and applied in another case of Victor Zampa (1984) Crim. App. R. (S) 110. In that case the appellant was convicted of a series of similar offences between the beginning of 1982 to about June/July 1982. In that case the Court considered that the defendants' guilt was aggravated by the fact that some of their offences charged in the second two indictments were committed after the seizure of some of the items which were subject matter of the first indictment. But the appellant was not the top man in the trade. The Court considered that it was not a case in which it was appropriate to impose the maximum sentence for the offence. A total sentence of 3 years was reduced to 12 months so as to enable the appellant to be immediately released.
.........
The distinction commonly drawn between 'soft porn' and 'hard porn' is perhaps the nearest one can get to a practical manner of categorizing the material. But, whereas in the case of dangerous drugs the distinction between 'hard' and 'soft' is easy to apply and therefore affords a valid means of establishing the appropriate scale of sentence, the same is not true of obscene material.
'Hard porn' is generally held to comprehend the depiction or description of behaviour of an especially gross or offensive kind - often involving something in the nature of perversion shading into brutality and sadism at the outer limit. But perversion may be latent in the eye or mind of the beholder, and the particular viciousness of this trade lies in its potential for damaging those who are most clearly at risk: the very young or the psychologically disturbed. For these, the wide distribution and ready display and availability of material showing or suggesting explicit sexual activity of any kind may prove deeply disturbing and demoralizing.
For this reason, the scale and commercial sophistication of the operation - including particularly the extent and visibility of display - are the factors of primary importance when sentence is being considered. The relative 'hardness' of the the material will of course remain a potent aggravating factor. Again, the incidence of the offence - whether it is on the increase, and to what extent - is clearly also a consideration of great importance.
Where the court is satisfied (a) that the material is obscene; (b) that the trade is flourishing in the face of existing sentences; (c) that the case before it concerns a substantial contribution thereto so that, (d), deterrence is a paramount consideration, then the robust approach adopted by the Court of Appeal in Holloway and in Zampa is, in our view, entirely appropriate to Hong Kong in what appears to be the present state of play in the offensive publications field in this territory.
We think therefore that immediate custodial sentences coupled with substantial fines should be considered as the primary option in these cases subject always to such factors of mitigation as may, in the individual case, justify more lenient treatment.
Since it would appear that custodial sentences have not usually been imposed have not usually been imposed for these offences in the past, it may be that comparatively short sentences of imprisonment may well be considered adequate in mild to average cases. Fines or more lenient treatment should continue to be imposed in very treatment continue to be imposed in very small or 'one - off' instances of transgression."
7. That case was different to the present one in that the respondent was 25 and was engaged in duplicating the tapes for $2,500 per month. He also had a clear record.
8. There can be no doubt that the pornographic trade is flourishing in Hong Kong and that the deterrence of others is a paramount consideration. It is necessary that individuals should be punished for the sake of the public good.
9. The fines imposed in this case were far beyond the appellant's ability to pay. He only earns $200 a day and is in no position to pay a meaningful fine. Mr Nunns, for the appellant, submitted that the magistrate's intention was that the shop owner should pay. Be that as it may, the fines have not been paid and the appellant has divulged no information about his employer.
10. This trade can be controlled only if people like the appellant are deterred from taking such jobs. Small fines will not have that effect and they cannot pay large ones. The proper sentence in bad cases such as this is, in my judgment, six months imprisonment.
11. The appellant, however, is under 21 and this is not an excepted offence in terms of S.109A of the Criminal Procedure Ordinance, Cap.221. Imprisonment is therefore not an option, unless there is no other appropriate method of dealing with him.
12. The appellant is not suitable for the Detention Centre on medical grounds, but he is suitable for detention in a Training Centre. This is a more appropriate measure than imprisonment in his case and this is the order I propose to make.
13. The appeal is allowed, the fines set aside and a Training Centre Order substituted.
(E. de B. Bewley)
Representation:
Mrs Opai, Crown Counsel, for Respondent.
Mr Nunns, inst'd. by D.L.A., for Appellant.