HKSAR v. LAU PAK YING

1997, NO. MA 636 & 637

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

(On appeal from ESC1606 of 1997 and ESC1717 of 1997)

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J U D G M E N T

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1. The appellant, LAU Pak-ying, in two separate cases, pleaded guilty to one charge of possession of obscene article for the purpose of publication and one charge of publishing an obscene article.

2. The two cases arose out of two separate occasions; one on 10 April 1997 and one on 17 April 1997. On both occasions, the appellant was found inside Shop 165, 298 Computer Zone Centre, at No. 298 Hennessy Road, Wanchai, Hong Kong. He was found to be selling obscene VCDs and there were also a large number of obscene VCDs in the shop on both occasions. The appellant admitted to have been employed to sell those obscene VCDs.

3. In connection with the two charges on the first occasion, he was sentenced to six months' imprisonment and fined $18,500 plus the enforcement of a bond in the sum of $1,500. In connection with the two charges on the second occasion, he was also sentenced to six months' imprisonment and fined $20,000. The prison terms were ordered to be served concurrently. In effect, the appellant was to serve a term of six months' imprisonment and was fined a total of $40,000.

4. I need not repeat what has been often said in this court concerning offences involving obscene articles. Such offence are very prevalent and the court has repeatedly emphasised that it is necessary to impose an immediate custodial sentence on even a first offender as a deterrent.

5. The issue involved in this appeal is whether such deterrent sentence in the form of an immediate custodial sentence should be accompanied by a heavy fine.

6. There seems to be no dispute that the appellant was not the boss of the shop in question. As in many cases of this type, he was employed to work in the shop. The criminal record of the appellant indicated that he had a total of 17 previous convictions, most of which were drug-related and some also involved minor incidents of dishonesty as well as other offences. Such background, in my view, is consistent with the assertion that he was at the material time being put forward as the front-man by the boss of the shop. Forty thousand dollars is a very substantial sum of money, particularly in the light of the background of the appellant. In the normal course of events, one does not expect a person of the background of the appellant to be able to afford a fine of such magnitude.

7. The learned magistrate, in imposing the fine of $40,000, might have been encouraged by the fact that in respect of the two cases, the appellant was able to put up cash bail in the total sum of $40,000. It is well-established that the court should not impose a fine which is beyond an accused's ability to pay. I would further suggest that a court should not impose a fine which is financially crippling to an accused. The fact that the accused was able to put up the $40,000 in cash as bail money did not necessarily mean that he could afford a fine of the same amount. It could have been a loan from friends or even from loan sharks.

8. One can well appreciate the anxiety on the part of any accused to try to raise bail money, even though the amount may not, in the normal course of events, be within his ability to put up. It is indeed suggested by Mr HUNG, on behalf of the appellant today, that this bail money of $40,000 was obtained as a loan from his sister and from a finance company.

9. Unfortunately, on this part of the case, the learned magistrate had not made any inquiry as to the financial capability of the accused when his background clearly indicated that he probably could not afford a heavy fine. In my view, in failing to make such inquiry the learned magistrate fell into error.

10. I am persuaded that the heavy fine imposed in the circumstances was not justified. In the circumstances, I think the appeal ought to be allowed and the order I make is that the fine of $18,500 imposed in respect of Case No. 1604, and the fine of $20,000 imposed in respect of Case No. 1717 is to be quashed, but the enforcement of the bond on the earlier case in the sum of $1,500 is to stand.

11. The appeal is allowed to the extent that I have indicated.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. PIRIE Date: 5 September, 1997