HKSAR v. KHALIQ MEHMOOD

HCMA 131/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 131 OF 2002

(ON APPEAL FROM NKCC 6588/2001)

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J U D G M E N T

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1. On 14 March 2002, I dismissed the appeal of the appellant against his sentence of 12 months imprisonment imposed upon him after trial for an offence of possessing for publication 56 obscene video compact discs.

2. In the course of his submission in support of that appeal the appellant, in effect, sought also to appeal against his conviction for the offence, saying that he was standing in the vicinity in Apliu Street, minding his own business, when he was arrested for the offence and that he was not in possession as charged.

3. The appellant told me that he was, in effect, 'framed'; that he had not committed the offence and that he wanted to go home to Pakistan.

4. I refused the appellant leave to appeal against his conviction.

5. In his reasons for sentence what the learned magistrate had to say was this:-

"I convicted the defendant after trial of possession for the purpose of publication of 56 obscene VCDs. I sentenced him to 12 months imprisonment and he now appeals that sentence.

The defendant was observed by a plain clothes police officer selling the discs from a hawker stall in Apliu Street.

The obscenity was admitted and was of moderate depravity.

In mitigation I was informed that the defendant had been in Hong Kong for 4 months and was seeking political asylum. He is 42 years old and has a wife and 5 children in Pakistan. He had no previous convictions. He has little education and can only speak Urdu and Punjabi.

Numerous offences of this type come before this court on a daily basis. Because of the prevalence of this type of offence in this area deterrent sentences are imposed. The usual sentence is one of imprisonment for 12 months for a person with a clear record. I considered a number of cases - CHAN Yuet-wing HCMA 741/99, LEUNG Kam-fai 742/99, POON Ki-chiu [1999] HKLRD E8 and SUEN Shun-wing [2000] 1 HKLRD C15.

The defendant as a visitor to Hong Kong would not in any event be allowed to work but I decided not to treat this as an aggravating factor. The defendant did not have the advantage of a guilty plea and I sentenced him therefore to 12 months imprisonment."

6. There was absolutely no merit in this appeal - either against conviction or sentence - and I accordingly dismissed it.