HKSAR v. HUI CHI MING

HCMA270/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 270 OF 2008

(ON APPEAL FROM TWCC 642 OF 2008)

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Dates of Hearing : 31 July 2008

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J U D G M E N T

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1. The appellant was convicted, on his own plea, of an offence of possessing for the purpose of publication obscene articles, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390.  The appellant was sentenced to 20 months’ imprisonment.  He now appeals against the sentence.

2. The admitted facts disclosed that as a result of a raid at a shop in Kwai Chung Plaza, obscene articles particularized in the charge (namely 2,257 pieces of obscene Digital Video Discs) were seized.  The appellant was the person-in-charge of the shop.  He admitted he knew the DVDs were obscene.  The DVDs depict sexual intercourse, including oral sex, between males and females.  Sexual organs could be seen.

Background

3. The appellant is a 59-year-old man with a long conviction record.  Excluding the five occasions when no conviction was recorded, the defendant appeared in court on no less than 43 occasions since 1964.  He collected a total of 51 convictions (excluding the present charge).  Of these 51 previous convictions, 30 were drug-related; 13 were either thefts or offences under the Theft Ordinance; and 8 related to obscene articles (two for publishing and six for possession for the purpose of publishing).

Reasons for sentence

4. In the oral reasons given in court, the magistrate referred to the appellant’s previous sentence of 16 months for a similar offence, meaning that the starting point was 24 months.  The magistrate then adopted a starting point of 30 months and gave the appellant the usual one-third discount.  Making reference to the maximum sentence he could have imposed as a magistrate, i.e. two years, he remarked that a sentence of 20 months — though only amounted to four months less than the maximum sentence he could impose — was still a ‘meaningful discount’.

5. In his written reasons, the magistrate said in para. 4 :

“4.     I took a staring point of 30 months imprisonment as this was the sixth time the defendant had appeared for such, or a similar charge, and it was clear that the previous sentences had not had any effect upon him.  His last prison sentence for the same offence had, I believed, had a starting point of 24 months.  I then gave the defendant a one-third discount for his guilty plea, which brought the sentence down to 20 months imprisonment.  I found 4 months was a meaningful discount for my beyond jurisdictional starting point of 30 months.  I found there was no other mitigation that should reduce the sentence further.”

Grounds of appeal

6. The grounds of appeal advanced by Mr David Boyton, counsel for the appellant, can be shortly stated as follows :

(a)      the magistrate did not mention what the starting point he adopted was; and

(b)     the normal ‘pre-enhancement’ sentence after trial on the present facts would be one of 18 months, a 30-month sentence is equivalent to a 66.6% increase, which is wrong in principle and manifestly excessive .

7. In his succinct written submission, Mr Boyton referred to the case of HKSAR v. Mak Tung, HCMA1196/2002 and submitted that the magistrate should have indicated what the normal starting point for the case was and then decided on the appropriate enhancement to reflect the appellant’s previous and similar convictions before giving the appellant discount upon his plea. 

8. Mr Boyton submitted the magistrate’s oral reasons were confusing and his written reason suggested an increase to 30 months was called for as the starting point adopted on the last occasion was 24 months.  There is no indication that the magistrate has formed any view as to the appropriate ‘pre-enhancement’ starting point.

9. Mr Boyton also referred to HKSAR v. Lam Cheung Shun, HCMA952/2001, HKSAR v. Lam Chun Leung, HCMA595/2002 cited in HKSAR v. Chan Mau Lung [2004] 2 HKLRD 48, and submitted the appropriate starting point should be one of 18 months.

10. On the enhancement aspect, Mr Boyton submitted that on the basis of an 18-month starting point, an enhancement to 30 months is wrong in principle and manifestly excessive.  He referred to HKSAR v. Tang Wing Cheong, CACC146/2002 and HKSAR v. Lam Kwai Wa, HCMA1078/2002 to support his contention.

Respondent’s response

11. Ms Teresa Kam on behalf of the respondent resisted the application.  She submitted that the magistrate clearly took 30 months as the starting point, which amounts to a 25% enhancement from the 24-month starting point taken on the last occasion.

12. Ms Kam submitted there are no sentencing guidelines for such an offence, which carries a maximum sentence of three years’ imprisonment and a fine of $1 million.  Such a prevalent and serious offence calls for a deterrent sentence.  The appellant is a repeated offender and on this occasion he was not just working as a foot soldier, but was the person-in-charge of the shop.  His criminality was such that a 30-month starting point was justified.

13. As to the magistrate’s observations of four months being a ‘meaningful discount’, and that ‘it works out the same, both ways’ Ms Kam submitted the magistrate had adopted a starting point exceeding the jurisdictional limit of two years, which was permissible so long as the actual sentence imposed is within the jurisdiction (see HKSAR v. Li Yan [1998] 4 HKC), the magistrate was clearly referring to the 2-year jurisdictional limit.  Ms Kam suggests what the magistrate meant by the same both ways was :

(a)      the appellant gets a one-third discount from 30 months;

(b)     the appellant gets four months as a meaningful discount from the jurisdictional limit of two years.

14. While accepting the sentence might be on the high side, Ms Kam submitted the sentence was neither wrong in principle nor manifestly excessive.

Discussion

15. The maximum penalty for this offence is imprisonment of three years and a fine of $1 million.  There are no sentencing guidelines.  Before the Court of Appeal was asked to consider giving guidelines in Chan Mau Lung, the courts have indicated a starting point of between 12 to 18 months would be appropriate for a first offender with material of low degree of obscenity (see e.g. Beeson J’s judgment in Lam Cheung Shun.)

16. In Chan Mau Lung, the Court of Appeal declined to issue any sentencing guidelines as the circumstances pertaining to offences relating to obscene articles vary infinitely.  The Court of Appeal agreed that generally an immediate custodial sentence is required as deterrence.  In the absence of exceptional mitigating factors, an immediate custodial sentence of 9 to 12 months as the starting point is appropriate for the offence of publishing obscene articles or possession of obscene articles for the purpose of publication.  The quantity of the obscene articles and the degree of obscenity are also factors which could result in an upward adjustment of the starting point.  Repeated offenders would receive a higher sentence.

17. The Court of Appeal also said that ‘it remained, to a large extent, a matter of discretion based on the experience and common sense of the sentencing magistrate’ (page 49 of the judgment).

18. The magistrate indeed has not made it clear what the starting point should have been before the enhancement.  From his oral and written reasons, it does appear that he enhanced the sentence to one of 30 months after considering the last starting point imposed on the appellant was one of 24 months (i.e. an increase of 6 months).  Such an increase would have amounted to 25%.

19. A preferred approach is for the magistrate to state what the appropriate starting point was after taking into account the facts of the case and all other circumstances, including the background of the defendant.  Should the defendant had a bad record and an enhancement is required in the sense propounded by the Court of Appeal in HKSAR v. Chan Pui Chi [1999] 2 HKLRD 830, the magistrate should then indicate the extent of such enhancement.

20. Simply reciting the starting point imposed on the last occasion was one of 24 months and then adopted an enhanced sentence of 30 months is not a satisfactory way to deal with the matter, nor is it fair to the appellant as there was no indication what the facts of the last case were.

21. While prevalence of the offence was not cited as any part of the reasons for sentence by the magistrate, this court cannot ignore the fact that such offences are still prevalent even years after the law was amended to allow for longer sentences.  The fact that the appellant came back to re-offend time and time again also shows that the sentence imposed previously does not have the desired deterrent effect, although the reason why he re-offend — advanced during mitigation — was because of his drug addiction.

22. After considering the facts of the present case, including the number of obscene DVDs involved (2,257), which is not an insubstantial figure; that they are at the lower end of obscenity; and the fact that the appellant was the person-in-charge of a shop, not merely a salesperson, I am of the view that a proper starting point is one of 18 months.

23. The past bad record of the appellant clearly trigger the enhancement principle stated in Chan Pui Chi.  The starting point that would have been appropriate for a first-offender “need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other.”

24. The appellant started to commit offences relating to obscene articles since 2000.  Throughout 2002, 2003 and 2004, he continued to commit similar offences.  The last convictions were in 2006.  After considering the gravity of the offence involved here and the degree of the appellant’s persistence, I am of the view that an enhancement of one third is appropriate.

25. The enhanced starting point should be one of 24 months.  After a one-third discount the sentence should be one of 16 months.

26. Although I said this is the preferred approach, I am not saying that this is the only way magistrate should deal with the sentencing of a repeated offender.  So long as the magistrate makes it clear that the sentence has been adjusted upward to take into account the re-offending, and the actual sentence imposed is not one which is manifestly excessive in all the circumstances of the case, the court on appeal is unlikely to interfere with the sentence imposed, but would defer to the wisdom and experience of the magistrate.

27. I would like to add that I fully agree with the interpretation put by Ms Kam on the magistrate’s reference to four months being a “meaningful discount” and there was nothing unclear about that observation.

28. For these reasons, the appeal is allowed to the extent that the sentence is reduced from 20 months to 16 months.