HKSAR v. MAK, TUNG

HCMA1196/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1196 OF 2002

(ON APPEAL FROM WSCC 1670 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted of an offence of publishing an obscene article contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390, and of an offence of possession of obscene articles for the purpose of publication contrary to section 21(1)(b) of the same Ordinance. In respect of each offence, he was sentenced to ten months' imprisonment, both sentences to run concurrently. That resulted in a totality of sentence of ten months' imprisonment.

3. The appellant complains these sentences were too severe in their totality. He says also other persons he has spoken to in prison have been sentenced to lesser terms of imprisonment on similar facts to those of his case. So far as that particular complaint of the appellant is concerned, the fundamental question is whether the appellant was correctly sentenced on the facts of this case and not whether other offenders were properly sentenced on the facts of their own cases.

4. In the present case, the appellant was found to have possessed for sale some 300 obscene video discs. He sold four of them to an undercover police officer. He was in charge of the shop where those discs had been sold and where they were kept. The discs seized at the time of the appellant's arrest were examined and found to contain scenes of sexual intercourse, oral sex, anal sex, group sex and bestiality. They were in the upper range of obscenity.

5. The magistrate, given the number and nature of the discs, said he would, without more, have taken a starting point of 12 months' imprisonment in respect of each offence. Such a starting point of sentence could not have been criticised so far as the nature of the present offence is concerned. In dismissing an appeal against concurrent sentences of 12 months' imprisonment and a fine totalling $10,000, Lugar-Mawson J said in HKSAR v. Tang Kam Cheong, HKMA937/2000 :

"There is a clear need for a firm response against those who peddle in pornographic VCDs. The message needs to send out to offenders and their legal advisors that stern penalties, involving imprisonment for meaningful periods and fines, will be imposed. Magistrates need to be assured that such sentences will be upheld if appealed."

Sentences based on starting points of 12 months' imprisonment for offences factually similar to the present offences have time and again been approved by appellate courts in Hong Kong. Such a starting point cannot be complained of.

6. The magistrate then in the present case, on the basis of HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830, took into account that the appellant had previous convictions for separate similar offences in respect of such offences and enhanced that starting point of 12 months' imprisonment to 15 months' imprisonment in respect of each offence. In that regard, he summarised his approach to his final sentence as follows :

"... I considered that I should enhance the starting point that I adopted by 25% (i.e. from 12 to 15 months imprisonment) and I then gave the defendant the customary 1/3 discount for his plea which reduced the prison terms to 10 months."

7. The magistrate's approach cannot be faulted. It may be that some courts would not have regarded two previous similar offences as necessarily triggering the enhancement principle of Chan Pui Chi but in the present case, after being released from prison, and only a matter of months after having served his sentence imposed in respect of the previous similar offences, the appellant was found offending again. In deciding whether to enhance a sentence on the basis of the principle expressed in Chan Pui Chi, it is not only the quantity of previous similar offences an offender has committed, but also factors such as how similar the previous offences were and how recently those offences were committed, which fall to be considered by the sentencing court.

8. In the present case, the previous similar offences, although only two in number, were committed in the relatively recent past and the magistrate was entitled to consider that that demonstrated the previous sentences imposed had not been an effective deterrent to the appellant's commission of this sort of offence and that some degree of enhancement was required. The level of enhancement he adopted in my view was proportionate and moderate. Accordingly neither the fact of enhancement of the starting point of sentence nor its degree can be said to be either wrong in principle or excessive.

9. The appellant further asks for a discount in sentence as he suffers from asthma. That was also advanced in mitigation before the magistrate who said that the appellant's medical difficulty in that regard did not warrant a reduction in sentence as it was of a sort which could be adequately dealt with by the provision of prison medical services. I agree. There is nothing in this complaint. The appeal against sentence is dismissed.