HKSAR v. NGAI YUK NING

HCMA1255/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1255 OF 1998

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J U D G M E N T

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1. This is an appeal against conviction and sentence.

2. The Appellant appeared before a Magistrate at the Eastern Magistracy on 19 November 1998. He was jointly charged with another person for an offence of possession of obscene articles for the purpose of publication, contrary to s 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap 390. He pleaded not guilty and after trial, he was convicted as charged. The Magistrate adjourned for sentence until 3 December 1998 in order to obtain a full range of reports on the Appellant, and on that day sentenced him to Training Centre.

Appeal against conviction

3. The first ground of appeal is that the conviction was based on circumstantial evidence which did not allow an irresistible or only reasonable inference of guilt to be drawn. That ground was abandoned by counsel for the Appellant at the commencement of this appeal, and I need say no further on that.

4. The second ground of appeal is based on the allegation that before the commencement of the trial before the Magistrate, he disallowed the prosecution from offering no evidence against the Appellant. Counsel for the Appellant complains that by so doing, the Magistrate expressed his opinion that by reason of the Appellant being present at the scene, there was sufficient evidence to proceed against the Appellant. There are other complaints based on the same allegation in that the Magistrate, by disallowing the proposed course of action of the prosecution,

(a) erred in interfering with the prosecution's decision;

(b) presumed the Appellant was guilty of the offence;

(c) failed to heed that justice had to be seen to be done; and

(d) failed to remind himself, in convicting the Appellant, that there was to be no presumption of guilt.

5. The events relevant to these complaints can be found in the verbatim transcript of what was said at the commencement of the trial. The Court Prosecutor was Mr Tsang, D1 was the Appellant, and D2 was the other defendant who was tried together with the Appellant before the Magistrate. The Appellant was represented by Mr Or, a solicitor. The relevant passages read as follows:

"Mr Tsang: May it please your Worship. The prosecution agrees to offer no evidence against D1 on the condition that he agrees to be bound over and he agrees to admit the brief facts.

Court: If he admits the brief facts, he's admitting committing the offence. On what possible grounds are your agreeing to bind him over? And where does that leave D2?

Mr Tsang: The prosecution will continue to proceed the case against D2.

Court: Yes, but why should you offer no evidence against D1 and not against D2?

Mr Tsang: Because after studying all the evidence we consider we do not have sufficient evidence to proceed against D1.

Court: I see. Well, if that's the case, so be it. No, I'm not accepting this. Looking at the brief facts, D1 is in the shop opening a wooden cabinet taking things out. If that isn't involvement, I don't know what is. Taking papers out and putting them into his left trouser pocket. A search on D1, PW1 seized a total of nine VCD covers from D1's pocket and a key for the shop. What more evidence do you require if that is accurate?

Tsang: Your Worship, if this is the case, may I have a moment of indulgence to get further instructions?

Court: Yes. I don't think it's fair on D2."

6. After an adjournment for about three-quarters of an hour, Mr Tsang told the Magistrate that the prosecution would be ready to proceed with the trial against both the Appellant and D2. There was no objection by Mr Or for the Appellant, and the trial proceeded.

7. Despite counsel's arguments, I am not able to find anything to justify any of complaints (a), (b) or (d) based on the fact that the Magistrate expressed his opinion about the Appellant's presence at the scene. That opinion would not amount to any undue or unwarranted influence by the court as to the course of action to be taken by the prosecution. Merely expressing that opinion cannot lead to any justification, or even support, for any of these three complaints.

8. Regarding complaint (c), Mr Cheung, counsel for the Appellant, referred me to R v Liverpool City Justices, Ex parte Topping [1983] 1 WLR 119, where the justices before whom Topping was tried for a charge of criminal damage to a door had seen court sheets prepared by a computer recently installed in that court showing that Topping was also charged with seven other offences to which he had not pleaded. His solicitor objected to the justices continuing to hear the charge. On Topping applying for judicial review of his conviction by the justices, the Queen's Bench Divisional Court held @ 123 of the report that the proper test to have been applied by the justices was whether there was the appearance of bias, rather than whether there was actual bias on the part of the justices. A proper question to ask was:

"Would 'a reasonable and fair-minded person sitting in court and' having all the relevant facts have 'a reasonable suspicion that a fair trial for' the applicant 'was not possible'?"

9. I accept that the test enunciated in Topping must be the proper test and should apply to the consideration of this appeal.

10. Mr Cheung submitted that the Magistrate's interference and expression of opinion would cause a reasonable and fair-minded person being in court at the time when the Magistrate expressed his opinion and knowing the brief facts of the case before the Magistrate to have a reasonable suspicion that a fair trial for the Appellant was not possible.

11. I do not agree. Although the brief facts are not in the appeal file, its contents can be gleaned from the Magistrate's reaction on page 2E-H of the transcript quoted above. It is important to note that he said "what evidence do you require if that is accurate?"; "that" meaning the brief facts as recited by him. He was approaching the case with an open mind and only expressed his view if the brief facts could have been proved accurately. I do not see any prejudice or bias that would cause any reasonable and fair-minded person to reasonably suspect that a fair trial would not be possible. Nor did the solicitor for the Appellant take another view, for there was not a single word uttered by him, let alone an objection that the Magistrate should not proceed with hearing the case against the Appellant.

12. I am not persuaded that the Magistrate had committed any error in law or in principle so as to justify my interference with his decision on convicting the Appellant. Nor do I consider that justice had not been seen to be done. The appeal against conviction is dismissed.

Appeal against sentence

13. The ground of appeal against sentence is that the Magistrate failed to take into account the absence of similar previous offences on the part of the Appellant. Counsel for the Appellant further argued that the sentence is manifestly excessive and wrong in principle.

14. Before passing sentence, the Magistrate ordered probation, community service and training centre reports on the Appellant who was 19 years of age. Having considered the personal circumstances and background of the Appellant as contained in those reports, the Magistrate sent the Appellant to training centre. No credit was given to the Appellant for a clear record. He had three previous convictions which were dissimilar in nature to the present offence. The Magistrate took the VCDs at issue at the bottom end of obscenity when considering sentence. He also had the following to say :

"Not a day goes by at the Eastern Magistracy without at least one case such as this having to be dealt with. The address is itself notorious for this sort of trade. I consider that a period of training or custody was called for in this case."

15. Despite counsel's arguments, I am not persuaded that the Magistrate had erred either in law or in principle.

16. There are recent authorities on sentencing in respect of the same offence as that the Appellant was convicted, namely, HKSAR v Mau Ting Sang, HCMA 1023 & 1024 of 1998 (15 December 1998, unreported), HKSAR v Chan Kin Hung, HCMA 1025 and 1026 of 1998 (8 January 1999, unreported) and HKSAR v Poon Leung Tak, HCMA1195 of 1998 (13 January 1999, unreported).

17. In the first of the cited cases, after taking into account HKSAR v. Tsang Biu Sum, HCMA 405 and 406 of 1998, where Mayo JA sitting as a Judge of the High Court found for a similar offence that nine months of imprisonment was a suitable penalty, Gall J adopted the same sentence for possession of obscene article for the purpose of publication as the starting point.

18. Chan Kin Hung and Poon Leung Tak were decisions in January this year of Deputy Judge Jackson, both dealing with the offence of possession and publication of obscene articles. In Chan Kin Hung, for each of two offences of possession for the purpose of publication relating to respectively 668 and 784 obscene VCDs, the Judge opined that the Magistrate's adoption of 12 months' imprisonment as the starting point was correct.

19. In Poon Leung Tak, the obscene VCDs involved were numbered 1433. The Magistrate took a starting point of nine months' imprisonment. The Judge, on appeal, regarded that at least 12 months' imprisonment should be the appropriate starting point. As a result, he increased the sentence passed by the Magistrate.

20. In the present case, 354 obscene VCDs were involved. The sentence of training centre was appropriate in all the circumstances shown before the Magistrate and myself. I do not find the sentence manifestly excessive. It is proper for the Magistrate to take into account the prevalence of the offence of which the Appellant was convicted in passing sentence. The sentence is not only deterrent in nature, but also has the benefit "to enhance the Appellant to develop more insight towards his problems". There is no basis for me to disturb the sentence at all. I therefore dismiss the appeal against sentence as well.