HKSAR v. POON LEUNG TAK

HCMA 1195/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1195 OF 1998

____________

____________

______________

J U D G M E N T

______________

1. This is an appeal against a total sentence of 6 months imprisonment imposed upon the appellant at the North Kowloon Magistracy in respect of 2 offences both committed on 15 May 1998 in an arcade at Sham Shui Po; one of publishing obscene articles and the other of possession of such articles for the purpose of publication. The appellant pleaded guilty to those offences, the first of which related to 2 video compact discs and the second to 1433 such discs. He was sentenced to 6 months imprisonment for each offence those sentences be served concurrently. Those compact discs contained material of the most disgusting nature, details of which were admitted by the appellant.

2. Before me the appellant has sought to argue that the sentence imposed upon him, given what he says is a small number of compact discs, was excessive. In my judgment it was nothing of the sort given that the maximum sentence for one such offence is imprisonment for 3 years and a fine of $1 million; given that the appellant was convicted of similar offences in July 1997 and August 1998; and given that - as the learned magistrate said inter alia in his reasons for sentence:-

" In assessing the correct starting point I took into account the following factors:

1. the area over which this Magistracy has jurisdiction is notorious as a seat of offences of this nature;

2. it is an offence of considerable prevalence: new instances of these offences come before this Court every single day of the week;

3. the numbers of VCD's involved, on a daily basis in this Magistracy alone, range from a few hundred to several thousand;

4. the continued incidence of these offences suggests that the levels of deterrence are lacking in effectiveness;

5. this was a substantial operation: there were 1,435 obscene VCD's.

6. The content of the VCD's was extremely perverted in nature involving children and acts of sexual violence.

I accordingly took as a starting point a term of imprisonment of 9 months. I allowed a full discount of one third for his plea of guilty on the first day the matter came before the court. There were no other factors which allowed me to further reduce the term.

I considered that the two offences were part and parcel of one operation and that the sentences imposed should be served concurrently. I sentenced him to six months on each charge."

3. This is the second appeal against sentence for offences of this nature to have come before me within 7 days (see MA 1026 & 1025 of 1998). In my view the appeal has no merit whatsoever. The appropriate starting point in sentence should have been at least 12 months imprisonment on each charge - reduced by virtue of the Defendant's plea of guilty to 8 months.

4. That being so the sentences imposed by the learned magistrate are set aside and replaced by concurrent sentences of 8 months imprisonment on each count to be served concurrently.