HKSAR v. TANG KAM CHEUNG

HCMA 937/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 937 OF 2000

(ON APPEAL FROM ESCC 3129/2000)

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J U D G M E N T

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1. The appellant, TANG Kam-cheung, appeared before Mr Ian Candy, Permanent Magistrate sitting at Eastern Magistracy on 11 August 2000. He pleaded guilty to a charge of publishing an obscene article contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap 390 and a charge of possession of an obscene article for the purpose of publication contrary to section 21(1)(b) of the same Ordinance. For these offences Mr Candy imposed concurrent custodial sentences of 12 months imprisonment on each charge and a fine of $5,000.00 on each charge. The Appellant now appeals those sentences.

2. At trial it was admitted that on 8 August 2000 the police undertook a controlled purchase of 5 VCDs at a shop at 188 Wanchai Road, Hong Kong Island. The person who sold the VCDs to the officer was the Appellant. This formed the basis of the 1st charge of publishing an obscene article. A raid, in which 2,884 VCDs were seized at the same shop, immediately followed the sale. The Appellant was arrested and admitted that he was in possession of the VCDs. This formed the basis of the 2nd charge of possession of an obscene article for the purposes of publication.

3. A sample of the VCDs seized were viewed, they showed scenes of explicit sexual acts between men and women with a particular focus on their sexual organs. Some showed sexual intercourse, some oral sex acts and some homosexual acts.

4. The Appellant has a long criminal record. He has 39 previous convictions, including two for possession of obscene articles for the purposes of publication.

5. In mitigation at trial it was advanced that the Appellant had pleaded guilty to the offences at the first opportunity, that he was suffering from diabetes and had a lung complaint.

6. In his reasons for sentence Mr Candy took note of the seriousness of the offences. The previous criminal record of the appellant - correctly describing him as a persistent offender. That the appellant had committed these offences very shortly after his release from his last prison sentence in respect of possession of infringing copies of copyrighted works. That the shop is in a location notorious for the sale of this type of goods. That these offences are prevalent in Hong Kong. That the appellant had a large quantity of obscene articles in his possession. And the appellant's plea of guilty.

7. In arriving at his sentences Mr Candy took a starting point of 18 months imprisonment, gave a one third reduction to reflect the guilty plea and imposed a sentence of 12 months concurrent and a fine of $5,000.00 in respect of each charge. The imposition of the same level of sentence in respect of each charge was simply a proper device to attain totality.

8. It was argued before me that Mr Candy erred in finding that the appellant committed these offences shortly after his release from prison after having served a sentence for a 'similar' offence. In sentencing the appellant he was entitled to take into account the fact that he had committed the present offences shortly after his release from prison. Mr Candy was also entitled to take into account the fact that the appellant had been imprisoned for selling pirated goods. Plain commonsense tells anyone that there is a connection between these two types of offence.

9. The authorities cited to me in the course of argument show that offences involving obscene VCDs are considered particularly serious and that, despite the penalties imposed, there is a growing concern at the growth of these activities.

10. In Chan Yuet-wing HCMA 741 of 1999 (unreported), on a charge of publishing an obscene article - there 7 VCDs - where the acts that they depicted were considered to be at the lower end of the obscenity scale, a sentence of 10 months on plea from a starting point of 15 months was upheld. The Court noted that the appellant in that case had a previous conviction and that this entitled to the court to raise the starting point.

11. In HKSAR v Yu Man-Lung HCMA 704, 777, 779 & 795 of 1999 (unreported), Beeson J in the Court of First Instance noted that that the maximum sentence for this offence was 3 years and a maximum fine of $1m. Beeson J observed that the purpose behind the legislation was not just to regulate the sale and supply of obscene articles, but to stop the trade in them altogether. And just as narcotics dealers could not continue their nefarious work without the assistance of couriers and petty traffickers, the trade in obscene VCDs could not continue without the assistance of those who were prepared to take the risk of working in shops and on stalls selling such items. Despite the fact that longer sentences of imprisonment had recently been passed on offenders, the trade still appeared to flourish. The rewards for those who ran the trade were so great that they could afford to reopen sales outlets almost as soon as they were raided. It was noted that some of the salesmen were arrested and then re-arrested for similar offences even before the courts had had time to deal with the earlier cases. Shops reopened at the same venues under slightly different guises. Fear of the penalties they might suffer and, for repeat offenders, the fact of imprisonment, did not appear to be sufficient to deter people from taking posts as salesmen. Although the court had power under the Ordinance to impose heavy fines for these offences, such fines, in reality, could not be imposed on the generally impecunious salesmen who appeared before the court for these offences. Only by passing truly deterrent sentences could these salesmen, without whom the trade would largely fold, be discouraged from taking up or continuing this work.

12. The recognition of a need to raise the sentencing level appears in HKSAR v Chung Yun-Hung HCMA 1245 of 1999. The appellant in that case admitted a charge of publishing obscene articles. After taken 15 months' imprisonment as his starting point, the learned magistrate sentenced him to 10 months' imprisonment, and ordered him to pay $5,000.00 costs. The magistrate observed that the time had come when more severe sentences were necessary in the public interest. The facts were all too familiar - the appellant at a retail shop in Mongkok sold eight VCDs to an undercover officer posing as a customer. Those eight VCDs were the obscene articles which the Appellant admitted publishing. He admitted having about 500 other obscene VCDs in the shop at the material time. On appeal, V. Bokhary J in the Court of First Instance noted that although the magistrate had taken a higher starting point than those taken in relevant past cases, experienced magistrates were in the best position to discover, from the actual cases coming before them and their colleagues, what the position was when it came to the prevalence of offences involving obscene VCDs and whether it was stable, decreasing or increasing. The magistrates' views and the steps that they considered it necessary to take were very worthy of respect. Here, V. Bokhary J held, the magistrate put his experience to careful use.

13. In HKSAR v Ng Chi-man [19991 1 HKC 632, the Court of Appeal (per Power V-P) recognised that a sentence could be enhanced for a persistent offender.

14. There is a clear need for a firm response against those who peddle in pornographic VCDs. The message needs to sent 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.

15. The Appellant's previous and persistent record, together with the quantity of material seized, amply justified the sentences he received. His appeal against sentence is dismissed.