THE QUEEN v. YU CHUN HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 491 OF 1991

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J U D G M E N T

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1. The appellant was the 2nd of two defendants pleaded guilty to a charge of Publishing an Obscene Article, contrary, to Section  21 (1) (a) of the Control of Obscene and Indecent Article Ordinance. The other defendant also pleaded guilty to a charge of possession of obtaining Obscene video tapes for the purpose of publication, contrary to Section 21 of that Ordinance.

2. The admitted facts were that police officers went to a shop in Nathan Road, which was advertising by means ofa "sandwich board sign" on the foot-path, that it had pornographic videos for sale and for rent.

3. The 1st defendant opened the door to admit them, and asked what kind of obscene videos they wanted. This appellant told them the shop had Japanese and European tapes available, and he negotiated a sale of a video tape and a laser disc with one of the police officers. The 1st defendants conviction on the two charges led to his being sent to a Detention Centre. This appellant was sentenced to detention in a Training Centre in respect of his sole conviction. He now appeals against that sentence.

4. In his Reasons for Sentence, the learned Magistrate said:

"When assessing penalty, I took into account the facts of the case, the defendants background and what was said in mitigation on the defendant's behalf. I also took into account what was said by the Court of Appeal, in Attorney General v. Tang King Ming (1986) HKLR 210, which was followed by Mr. Justice Bewley in The Queen v. Lam Wing Ching, Magistracy Appeal No. 641 of 1990. In Lam Wing Ching, Mr. Justice Bewley said:-

 

'There can no doubt that the pornographic trade is flourishing in Hong Kong and that the deterrence of others is of paramount consideration. It is necessary that individuals should be punished for the sake of the public good.'

5. Later in his judgment, Mr. Justice Bewley says:-

6. He then went on to say that, in effect, he was satisfied regarding the statutory conditions precedent for making a Training Centre order.

7. In the report supplied to the. learned Magistrate, it was apparent (a) from the probation officers report that the Appellant's repeated commission of this type of offence showed a lack of insight into his problem, a lack which arose at least in part from his belief that, such offences were "just civil offences like illegal hawking"; and (b) from the Correctional Services Department Reports that, although he was suitable for detention in both a Training Centre and a Detention Centre, he was considered more suitable for Detention Centre training. The learned magistrate was quite entitled to ignore the preferred method of dealing with the defendant expressed in the reports from the Correctional services Department. But the record does not show why he preferred the Training Centre measure to the Detention Centre sentence.

8. It is clear from the learned Magistrates Reasons for Sentence that the conviction on the charge of publishing the obscene articles was not one which in itself warranted a custodial sentence. It was open to him to have imposed a fine on the appellant in respect of that conviction, and to have activated the suspended sentence. The appellant has now been in custody for a day short of 4 months and should now be convinced that this is not "a civil offence like hawking".

9. Had the learned Magistrate imposed a fine and activated the suspended sentence, the appellant, at this stage, would have served the term of the suspended sentence. As he has in addition to that spent a further month in custody, it seems to me that that further month is at least the equivalent of any fine which could have been appropriately levelled in respect of this offence.

10. The favourable report which has been obtained from the Correctional Services Department about his behaviour since he has been in custody, indicates that he now has an insight into his behavioural problem and that the object of the Orders made has been accomplished.

11. Accordingly, it sees to me that I should make an order which will secure the appellants immediate release. In order to do that, I allow the appeal and quash the sentence, and in lieu thereof order that the appellant serve such period of imprisonment as will allow his immediate release. I activate the suspended sentence but reduce the period thereof to such period as will enable his immediate release.