HKSAR v. CHOY WING WAH

HCMA 717 and 718/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 717 and 718 OF 2001

(ON APPEAL FROM ESC 2060 and 1829 of 2001)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to one count of Possession of an Obscene Article for the Purpose of Publication in respect of one case ESCC2060/2001 (HCMA 717/2001) and on the same day pleaded guilty to Publishing Obscene Articles and Possession of Obscene Articles in respect of ESCC1829/2001 (HCMA 718/2001). At the Appellant's request the Magistrate dealt with the sentencing of both cases together.

2. The Magistrate on the first case sentenced the Appellant to 12 months' imprisonment plus a fine of $20,000 and in the second case, on the charge of publishing, to 2 months' imprisonment and on the second charge, possession, to 12 months' imprisonment. The 2 terms in the second case were ordered to be concurrent and a fine of $20,000.00 was imposed in that case also. The Magistrate took totality into account and ordered that 6 months run concurrently and 6 months run consecutively to the sentence already imposed in ESCC 2060/2001. The total sentence of imprisonment therefore was 18 months and fines were $40,000.00 in total.

3. Today the Appellant appeals against sentence, not in respect of the imprisonment term, that ground having been abandoned, but on the ground that the fines are too heavy and that the learned Magistrate failed to make sufficient inquiries as to the financial capacity of the Appellant to pay any fine before he imposed the fines.

4. I should state at the outset that it is quite clear that the Magistrate imposed proper prison terms in these cases. I note that in fixing the starting point he did not take account, as he could have done, of the fact that the Appellant had committed the offences in the second case whilst on bail for the first . He was aware of the fact, but chose not to increase the usual starting point. He noted that the offences were serious and prevalent in Hong Kong and that the 2 cases had been committed 18 days apart. All offences took place at 188 Wan Chai Road, which is notorious for the sale of this type of goods. A large quantity of obscene articles was found on each occasion - 1,724 and 1,608 respectively. Clearly a custodial sentence had to be imposed. The Magistrate took a level of obscenity at the lower end of the scale in fixing the starting point.

5. The Magistrate was aware that the maximum penalty for Possession of Obscene Articles is 3 years' imprisonment and a maximum fine of $1,000,000.00. He took the view, correctly, that these were commercial operations. He bore in mind the case of HKSAR v. Tang Kam Cheung [2000] 3HKLRD which supported "stern penalties, involving imprisonment for meaningful periods and fines" for those dealing in pornographic VCDs.

6. For the first case, the Appellant was represented by the Duty Lawyer who put before the Magistrate the personal particulars of the Appellant. He was married with a wife and a daughter. He committed the offence because he had been unemployed for quite a long time, he understood the consequences of his action would be a custodial sentence and he asked the court to impose a light sentence. That was all the Duty Lawyer said that might be relevant to the question of whether or not Appellant was capable of paying a fine. Later the Magistrate asked whether or not the bail money could go towards the fine and the Duty Lawyer assured him it could, without making any comment about the level of the fine, the source of the bail money, or Appellant's inability to pay a fine.

7. The Appellant had been bailed in the sum of $25,000.00 in each case. After counsel confirmed the bail money could be used, the fine was fixed at $20,000.00. In the second case, the Appellant appeared in person. He told the Magistrate in mitigation that he was "an old-aged person", that he had lost his job and because he had not been able to find work, he committed the offence. He said that he did not want to say anything more. The court asked him whether he realised that in addition to any custodial sentence, he would be fined a sum, which would be the bulk of, although not all of, the bail deposited and whether he had anything to say in that regard. The Appellant said that his daughter was 11 years old, that he was separated from his wife and he could not find a job. He said no more about his capability of meeting the fine. He did not tell the Magistrate what the source of the bail money was.

8. Having considered the circumstances, I am satisfied that in each case the Magistrate had made sufficient enquiries of the Appellant as to his means. In the first case, the Magistrate was entitled to rely on what the Duty Lawyer told him about the Appellant. It is not for a Magistrate where a represented defendant appears before him, to make an exhaustive enquiry of that defendant through his representative as to his means, or whether or not he is capable of paying a fine. It must be obvious to a legal representative appearing on these matters that a fine is a possibility in any case and this is one of the matters on which he is obliged to take instructions.

9. The Magistrate had the advantage of dealing with these cases on the same day. The Duty Lawyer appeared in the first case; the Appellant was given the opportunity to say more in the second case about his ability to paying any fine that was imposed. The Appellant said nothing. On this appeal it was submitted that the bail money had been borrowed from friends and the fine was too large, in light of Appellant's inability to repay it.

10. The Magistrate had the power to impose both a custodial sentence and a fine. Although I am satisfied that he took sufficient steps to ascertain what the Appellant's means were in imposing that fine, I am concerned as to the level of the fines eventually imposed. The brief facts showed that this Appellant was not a major player in this business, but the usual pedlar brought in to as cannon-fodder for the people who are actually making the profits.

11. As the Appellant had been out of a job for some time he was unlikely to be able to pay a large fine. He might well have had to borrow the bail money. If so he would face a substantial debt on leaving prison. Any difficulty in repayment could lead him to commit further offences because of age-related difficulties in finding work.

12. The Magistrate could not, as he appears to have done, simply rely on the fact that as the bail money in each case was $25,000.00, that was a suitable level at which to peg the fines. He may have suspected that the bail money had been put up by the shadowy people behind these businesses, but in the absence of any other indications that that was so, he should have assessed the level of fine in the light of Appellant's likely income at a legitimate job.

13. For Appellant to repay $40,000.00 over 12 months would mean monthly instalments of $3,000.00 odd, leaving aside any interest element. It is unlikely that any legitimate job the Appellant might find would enable him to do so. For that reason I am prepared to allow this appeal to the extent of reducing the fine in each of these cases to $5,000.00.

14. In doing so I am not setting any general guide to the level of fines for offences such as these. It is for the Magistrate in each case to impose a fine having regard to all the information available. Magistrates, in suitable cases, should not hesitate to use their dual power to imprison and fine, bearing in mind that deterrence is their sentencing aim in cases such as these.