HKSAR v. WONG MAN WAH

HCMA 735/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 735 OF 2002

(ON APPEAL FROM ESC 754/2002)

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J U D G M E N T

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1. On 14 June of this year the appellant was convicted upon his own pleas at Eastern Magistrates Court of an offence of publishing 5 obscene video compact discs and of an offence of possessing 687 such discs together with 41 obscene digital video discs for the purposes of publication.

2. On 26 June he was sentenced to a term of 4 months imprisonment in respect of the first offence and to a term of 8 months imprisonment in respect of the second offence those terms to be served concurrently. In addition he was fined $20,000 in respect of the second offence. His original notice of appeal (Form 102) was in the standard form and concludes: "And that the general grounds of my appeal are that my sentence was too severe".

3. In his reasons for sentence the magistrate had, inter alia, this to say:-

" After accepting his guilty pleas, I adjourned sentence in order that the defendant be able to assist his family which was arriving, he submitted, within a couple of days from China to settle in Hong Kong. I clearly told the defendant that although sentence had not been determined, a custodial sentence was almost inevitable. In the interim, I took advantage of the adjournment to obtain a probation report as the defendant was unrepresented.

I took into account all that was submitted in mitigation and in the probation report. He is a 39-year-old male on CSSA; he has a lengthy criminal record. He has a four-year-old son in China and he expected his pregnant wife and child to arrive in Hong Kong to settle at any time. ....... He admitted his previous 8 convictions, none of which were similar. The probation report was negative. The defendant did not take issue with any of the contents. He has an unfortunate history with heroin addiction. I decided not to pursue addiction rehabilitation as it was clear from the probation report that he continued to abuse dangerous drugs even in the course of these proceedings and had failed numerous attempts to rehabilitate.

I found that a deterrent sentence was apposite for each offence. I found that after trial on Charge 1, a sentence of 6 months imprisonment was right and after a full (and probably undeserved) discount of 1/3 for his late plea, I sentenced him to 4 months in prison. On Charge 2, I found that the correct starting point after trial was 12 months in prison. I sentenced him to 8 months on his late plea. In consideration of totality and the mitigating circumstances relating to the alleged impending arrival of his family, I ordered that these sentences be served concurrently, for a total of 8 months."

4. The magistrate (perhaps understandably given the somewhat vague ground of appeal) made no reference whatsoever in his reasons for sentence to the fine which he had imposed, but from a reading of the transcript to the proceedings on 26 June, it is quite apparent that this exchange took place:-

"Court: Yes, I am going to proceed to sentence today. You have $20,000 in bail. I intend to, as a component to sentence, impose a fine on you. Is that money available to pay a fine?

Defendant: I don't have money myself. Not .....

Court: Yes. No, its $20,000 in bail. Can I use that to pay a fine?

Defendant: Yes.

Court: Yes. Your boss put that in as bail for you I'm sure.

Defendant: Some was contributed by my boss. Some I borrowed from my friends."

5. It seems to me to be quite apparent from that exchange and from the fact acknowledged by the magistrate that the appellant was in receipt of public assistance that he (the magistrate) was intent on penalising "the boss" who financed the operation of the sale of the discs and also a portion of the appellant's bail, penalising him ("the boss") rather than the appellant.

6. Before me this morning the appellant has said that he does not object to the prison sentence imposed upon him but that he wants, as he put it, his bail money back, which money he says he borrowed from friends to support his pregnant wife and child upon their arrival in Hong Kong, and which money he must, in due course, repay. He has also told me that his family will not be arriving in Hong Kong until after his release from prison.

7. The sentences of imprisonment imposed upon the appellant cannot, in my respectful view, be criticised. They are perfectly proper. The additional imposition of the fine, however, was in all of the circumstances as I have just recited them, at least questionable in terms of principle.

8. Accordingly I allow this appeal to the extent that the fine will be quashed and the money will be returned to the appellant.