HKSAR v. CHAN CHUI LAP

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.313 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty to one charge of possession of obscene article for the purpose of publication and one charge of displaying an indecent matter.

2. The possession charge relates to 350 VCDs which contained sexual scenes. In relation to the 2nd charge, he displayed 30 VCD covers with sexually explicit pictures. He was sentenced to one month imprisonment on the 1st charge and fined $10,000; he was fined $1,000 on the 2nd charge. On 18th February 1997, he was sentenced on a similar offence to three months' imprisonment suspended for 12 months and a fine of $10,000. The Magistrate activated the suspended sentence which is to be served consecutive to the one month imprisonment under the 1st charge.

3. Under s.21 of the Control of Obscene Indecent Articles Ordinance, Cap. 390 ("the Ordinance"), the penalty for possession for the purpose of publication of obscene articles is $1 million fine and imprisonment for three years. Under s.23 of the Ordinance which deals with display of indecent matter, on the first conviction, a fine of $400,000 and to imprisonment for 12 months and on the second and subsequent conviction, a fine of $800,000 and imprisonment for 12 months.

4. Mr Veltro referred me to the case of Attorney General v. Tang King-ming, [1996] HKLR 210 which was decided under the Objectionable Publications Ordinance in which the Court of Appeal set the sentencing guideline. It was said that immediate custodial sentence coupled with substantial fines should be considered as the primary option, subject always to such factors of mitigation as may, in the individual case, justify lenient treatment. In Sentencing in Hong Kong 2nd Ed. by Cross and Cheung (p.299), the authors referred to a number of cases and stated that : "Customary range : if there is serious obscenity, then even for first offenders, immediate custodial sentences, perhaps coupled with fine, are appropriate: Attorney General v. Chow Koon-lap [1996] 2 HKC 600. Deterrence is a paramount consideration."

5. In the present case the Magistrate adopted a starting point of three months imprisonment reducing it to one month to give credit to the guilty plea. The Appellant had over 20 previous convictions with two similar ones. In my view, the sentence imposed by the Magistrate is appropriate and the appeal is dismissed.