HKSAR v. POON KI CHIU

HCMA209/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 209 OF 1999

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J U D G M E N T

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1. The Appellant, on his own plea, was convicted by a Magistrate of the offence of possession of an obscene article for the purpose of publication and the brief facts that he admitted before the Magistrate showed that he was observed to be shouting slogans to entice customers to go into a shop in Kwun Tong Plaza, a notorious place for this sort of offences. Upon being arrested, he admitted that he was the person in charge to sell obscene VCDs. The number of obscene VCDs involved was 429.

2. In passing sentence, the Magistrate adopted a starting point of 12 months' imprisonment, and he allowed a reduction of the sentence to recognise the plea of guilty by the Appellant. But he did not allow the usual reduction of one-third because accordingly to him, the Appellant was caught red-handed.

3. Mr Kwong, on behalf of the Appellant, limited his argument against the sentence of nine months' imprisonment to the Magistrate's not adopting the usual reduction of one-third of the starting point. On the other hand, Mr Madigan, for HKSAR, argued that the sentence imposed by the Magistrate was appropriate because the starting point was on the low side, and taking into account the difference of one month, the Magistrate's sentence of nine months should be upheld by me.

4. There are recent authorities on sentencing in respect of the same offence as that the Appellant was convicted of. In HKSAR v Mau Ting Sang, HCMA Nos 1023 & 1024 of 1998 (15 December 1998, unreported), after taking into account the case of HKSAR v Tsang Biu Sum, HCMA Nos 405 & 406 of 1998 where Mayo JA sitting as a judge of the High Court found for a similar offence that nine months of imprisonment was a suitable penalty, Gall J adopted the same sentence for possession of obscene article for the purpose of publication as the starting point. More recently, in HKSAR v Chan Kin Hung, HCMA Nos 1025 & 1026 of 1998 (8 January 1999, unreported) and HKSAR v Poon Leung Tak, HCMA 1195 of 1998 (13 January 1999, unreported), Deputy Judge Jackson also dealt with sentencing regarding the offence of possession and publication of obscene articles. In Chan Kin Hung, for each of the two charges of possession for the purpose of publication relating to respectively 668 and 784 obscene VCDs, the Judge opined that the Magistrate's adoption of 12 months' imprisonment as a starting point was correct. In Poon Leung Tak's case, there were 1,433 obscene VCDs involved. The Magistrate took a starting point of nine months' imprisonment. The Judge, on appeal, regarded that at least 12 months' imprisonment should be the appropriate starting point. As a result, he increased the sentence passed by the Magistrate.

5. In the instant case, 429 obscene VCDs were involved. The adoption of 12 months' imprisonment as a starting point was appropriate, according to me, in all the circumstances shown before the Magistrate and myself. However, the Magistrate reduced the sentence by only one-quarter for the Appellant's guilty plea, stating that the Appellant was caught red-handed and that there was little that the Appellant could do but to plead guilty. I think in all cases of this nature, while evidence would depend mostly on the observations of police officers in raiding these small shops in usually busy and crowded shopping arcades, a conviction can only result if there is no doubt that the officer giving evidence made no mistake in his observation. The plea of guilty of the Appellant did show his remorse, as submitted by Mr Kwong, unless proven otherwise. A guilty plea would lighten the work of the courts and the police and save our public resources and funds. The usual reduction from the starting point by one-third should be maintained. My view is supported by the cases cited by Counsel for both sides. In R v Kwong Kai Him, Cr App No 403 of 1995 (29 March 1996, unreported), Bokhary JA (as he then was) delivered the judgment of the Court of Appeal. There he said :

" There may be cases in which the fact that the man was caught red-handed would justify something less than a third, but certainly not much less than a third. The present case is one of a man being caught with dangerous drugs in his possession. Catching him red-handed is the only way in which to catch him. And it is notorious that if an accused alleges that the drugs were planted on him, a simple case can result in a fairly lengthy trial.

In a case such as this, pretty much a one-third discount is appropriate across the board. ..."

In R v Yu Man Wu, Cr App No 214 of 1995 (10 October 1995, unreported), a robbery case, again the same judge, delivering the Court of Appeal's judgment, had this to say :

" In giving a discount of only six months for the applicant's pleas of guilty -- for that is the discount which he gave -- we think that the judge gave too little by way of such a discount. It is true that defending the case would have been very difficult. And it is also true that the amount of time saved by the guilty pleas in this case was not very great.

Nevertheless, it is the policy of the law to encourage guilty pleas by guilty persons. So this applicant should have been given a substantial discount. It did not have to be as much as the discount due to someone who pleads guilty despite the fact that the prosecution case is not as overwhelming as it would be if, for example, he had been caught 'red-handed'. Nor did it have to be as much as the discount due to someone whose guilty plea saves a lot of time. But it ought to have been substantial nevertheless."

In the more recent case of HKSAR v Wong Ka-kuen & Another, Cr App No 35 of 1998 (28 January 1999, unreported), a drug trafficking case, Stuart-Moore JA giving judgment of the Court of Appeal stated at page 9 :

"... This Court has stressed on frequent occasions that in the absence of good reason where a timely plea has been entered, a defendant is entitled to his full one-third discount. Being caught 'red-handed' is not, in the view of this Court, a sufficient reason to disallow the full discount. ..."

6. The Appellant in the present case took the first opportunity before the Magistrate to enter a guilty plea. In the circumstances, I cannot see any reason for the usual discount not to have applied to his situation. I therefore set aside the sentence of nine months' imprisonment as imposed by the Magistrate and substitute for it a sentence of eight months. The appeal is allowed to the extent that the sentence is reduced to eight months.