HKSAR v. YIP FUK HUNG

HCMA514/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.514 OF 1999

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J U D G M E N T

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1. The Appellant was charged with two offences : (1) publication of an obscene article, namely three obscene VCDs; and (2) possession of obscene articles for the purpose of publication, involving 482 obscene VCDs.

2. The matters arose out of a test purchase by a police officer from the shop as shown in the charges. The officer purchased three VCDs from that shop. In that shop 482 other obscene VCDs were also seized. The obscene nature of the VCDs in question was admitted, but the Appellant denied that he was responsible for selling the VCDs or that he was in possession of the other larger quantity of VCDs. However, he did not dispute that he was in the shop and he had been engaging in placing VCDs into sleeves. He now appeals against conviction and sentence before me because he was found guilty by Mr Mackintosh, a magistrate, and was sentenced to eight months' imprisonment for each of the charges, to run concurrently.

3. In fact, what the Appellant is trying to do before me is to repeat what he told the Magistrate in evidence. He has not been able to point out any matter in which the Magistrate might have erred. The Magistrate rejected his evidence, considered that his presence in the shop and his placing VCDs into sleeves as admissions that were intended to minimize his role in the shop, and found him guilty. I do not see any way to fault the Magistrate's findings; therefore the appeal against conviction is dismissed.

4. On sentence, I am referred to two cases by Ms Ko on behalf of HKSAR, namely HKSAR v. Ngai Yuk Ning, HCMA1255/98 (18 March 1999, unreported) and HKSAR v. Poon Ki Chiu, HCMA209/99 (31 March 1999, unreported) in which I referred to authorities dealing with the appropriate sentence for this sort of offence. According to those authorities, it appears for the quantity of obscene VCDs involved in the present case, a 12-month imprisonment should be the appropriate starting point. In the present case, the Appellant fought the case and lost. There was no plea of guilty to show remorse and the Magistrate had taken into account the eight similar offences committed by the Appellant from 1990 to 1996. The Magistrate cited the case of HKSAR v. Ng Chi-man [1999] 1 HKC 632 at 635 to show that an offender with such number of similar offences presented circumstances of aggravation in sentencing.

5. I do not see how the Magistrate had erred in any way except on the side of leniency. I therefore dismiss the appeal against sentence.