HKSAR v. CHEUNG KWAI HO

HCMA 673/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 673 OF 2001

(ON APPEAL FROM ESCC 1830/2001)

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J U D G M E N T

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1. This Appellant, a man in his late forties, pleaded guilty before Henry Mierczak Esq. in the Eastern Magistracy to two charges under the Control of Obscene and Indecent Articles Ordinance, Cap. 390. Charge 1 was of publishing obscene articles, contrary to section 21(1)(a). Charge 2 was of possession of obscene articles, contrary to section 21 (1)(b). The articles under Charge 1 were five obscene VCDs. The articles under Charge 2 were 2,652 obscene VCDs and 203 obscene DVDs. The publishing, to a plainclothes officer posing as a customer, and the possession were at the same shop in Wan Chai on the same day, 1 June this year. The articles, although obscene, were of the kind which the Magistrate described in another case on appeal before me today as "at the lower end of the scale" of obscenity.

2. On Charge 1, the learned Magistrate took a starting point of 3 months' imprisonment and discounted it to 2 months' imprisonment for the guilty plea. On Charge 2, he took a starting point of 18 months' imprisonment and discounted it to 12 months' imprisonment for the guilty plea. He made the sentences concurrent. On Charge 2, he also imposed a fine of $20,000. So the total sentence was 12 months' imprisonment and a $20,000 fine. The Appellant appeals against sentence.

3. Six Perfected Grounds of Appeal against Sentence have been filed on his behalf. They read:

"1. The learned Magistrate erred to adopt 18 months imprisonment as a starting point for the second charge when the appellant had been living on public assistance and had not committed similar offence before.

2. The learned Magistrate erred and was wrong in principle to impose a fine of $20,000 when the appellant was on public assistance.

3. The learned Magistrate erred to impose a fine of $20,000 which was beyond the Defendant's capability to pay.

4. The learned Magistrate already imposed a long imprisonment term for the offence, it rendered the sentence of a heavy fine of $20,000 too severe in all the circumstances.

5. Alternatively, should the fine be considered appropriate, the totality of sentence when taking the imprisonment term into account was too severe in all the circumstances.

6. The sentence was in all the circumstances too severe and manifestly excessive."

4. I begin by saying that I agree with Lugar-Mawson J who said this at p. 520 in the case of HKSAR v. Tang Kam Cheung [2000] 3 HKLRD 516:

"There is a clear need for a firm response against those who peddle in pornographic VCDs. The message needs to be sent out to offenders and their legal advisors that stern penalties, involving imprisonment for meaningful periods and fines, will be imposed."

5. As stiff term of imprisonment and a substantial fine were called for in this case. The prison sentence and the fine are within the appropriate range. The mere fact that the Appellant had been in receipt of public assistance did not mean that a heavy fine was beyond his means. The learned Magistrate, looking at all the circumstances, decided to impose a fine as well. As it happened, the Duty Lawyer representing the Appellant when asked by the learned Magistrate if the bail money could go towards the fine, answered 'Yes'.

6. All the grounds of appeal fail, and the appeal is dismissed.