THE QUEEN v. LO HOK YEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 107 OF 1992

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BETWEEN

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J U D G M E N T

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1. This is an appeal against sentence by LO Hok-yee who ran a shop and when it was raided a number of pornographic videos were seized. He appeared before the Magistrate and should have pleaded guilty but did not. Eventually he was convicted and he was fined for some copyright offences, $5,000 on each charge. Although there is no appeal against that sentence, it is a wrong practice of the Magistrate to seek to utilize the amount of bail money as the method of determining the appropriate penalty if it is financial. The Court of Appeal has deprecated that practice of making people pay their bail money as a fine without inquiring into their means. Although there is not an appeal, I take that as a relevant factor in considering the sentence on the other matters.

2. The Magistrate sentenced him to 9 months imprisonment. He had regard to the decision of Mr. Justice Bewley in Lam Wing Ching setting out the decision of the Court of Appeal in Tang King Ming both of which are familiar to me. The Magistrate may well have misunderstood some of the facts presented to him because "hard porn", generally speaking, is a word descriptive of gross or offensive behaviour often turning into brutality or sadism. Out of the 3,000 tapes in the shop, there were 182 seized, 13 seized in the shop, and 169 seized at home. It may be they were being kept at home so that people were able to be given these pornographic videos if they asked for them, but I take into account what Mr. Wong has said that there were only 13 potentially on display for the public. However, the fact which appears to have escaped the Magistrate is that of the 182 seized only 5 or 6 were hard porn in the sense that I have used the word and Mr. Li of the Crown has confirmed that. When I read the reasons it appeared to me that a large quantity were of that character and although the others were pornographic, they could be classified in the lesser category.

3. The Magistrate held the trade was "prevalent in Hong Kong". I confess I do not know how one can take judicial notice of this in the absence of evidence. I have no experience of these matters. I do not know whether it is prevalent or not. No figures were given by the Crown.

4. Taking into account all those factors in my judgment either a fine or a short period of imprisonment should have been imposed. The maximum should have been something in the order of 3 months. However, having regard to all the factors and that the appellant has been in prisonment for 1 month already before'being allowed out on bail, I shall allow the appeal, reduce the sentence to a period of imprisonment such as permits his release now.