HKSAR v. CHENG KOON CHAU

HCMA 176/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 176 OF 2001

(ON APPEAL FROM ESCC 306 OF 2001)

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J U D G M E N T

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1. The appellant appeals against a sentence of 12 months imprisonment and a fine of $10,000 imposed upon him by Mr Candy sitting at Eastern Magistrate's Court on 29 January 2001, after he pleaded guilty to one count of "Possession of Obscene Article for the purpose of publication" contrary to S21(1)(b) of the Control of Obscene and Indecent Articles Ordinance Cap. 390.

2. The indecent article in question consisted of 2,112 obscene video compact discs. The contents included scenes of explicit sexual acts between men and women, focusing on their sexual organs and also included acts of oral sex. The offence took place at 188 Wanchai Road which the Magistrate noted was a notorious location for the sale of this type of obscene material.

3. The ground of appeal is that the appellant's sentence was too severe. In particular the appellant says that he should not have been both fined and sentenced to a term of imprisonment.

4. The learned Magistrate noted that the appellant's drug conviction indicated that in the past he may have been a drug dependent. He rightly considered that a drug addiction treatment order would not be an appropriate penalty in this case.

5. The learned Magistrate adopted a starting point of 18 months imprisonment. He did so after taking into account that the appellant was a persistent offender. Of his 16 previous convictions, 4 were for exactly the same offence. For those offences he had been sentenced to terms of imprisonment. He also had a recent conviction for publishing an obscene article for which he was sentenced to 8 months imprisonment and a recent conviction in respect of infringing copyright discs.

6. The learned Magistrate was fully entitled to take into account the fact that the appellant was a persistent offender when deciding on the appropriate starting point. In the case of HKSAR v. Ng Chi Man 1991 HKC 632, referred to by the learned Magistrate, the Court of Appeal indicated that the fact the defendant is a "determined offender experienced in this kind of offence" is a relevant consideration when fixing a starting point for sentence. It is no more than common sense that if shorter terms of imprisonment have failed to deter an offender from repeating his offence, then the court should be able to adopt an enhanced starting point.

7. In my view the starting point of 18 months imprisonment was a perfectly proper one bearing in mind the fact that the appellant was obviously a determined offender and the number of offending VCDs involved. Having adopted the starting point of 18 months imprisonment, the learned Magistrate properly allowed a discount of one-third to reflect the appellant's plea of guilty.

8. As I have said, the learned Magistrate also imposed a fine of $10,000. Bearing in mind that it is financial gain that provides the motive of this sort of offence, it was perfectly proper for the Magistrate to impose a fine in addition to a term of imprisonment. The learned Magistrate however appears to have been under the mistaken impression that he was dealing with two offences rather than one. He said that he was imposing "a fine of $5,000 on each charge" and he imposed a total fine of $10,000. It may well be that he was influenced by the fine of $5,000 he had imposed in addition to a term of 12 months imprisonment in the case of HKSAR v. Tang Kam Cheung MA 937 of 2000. In view of the Magistrate's apparent misapprehension as to the number of offences he was dealing with, it is clear that the fine of $10,000 cannot stand. I allow the appeal to the extent of substituting a fine of $5,000 for that of $10,000. The sentence of imprisonment stands.