HKSAR v. TUNG HOI WANG

HCMA546/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.546 OF 2002

(On appeal from TWCC No.42 of 2002)

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J U D G M E N T

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1. The appellant pleaded guilty to two charges of possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. He was sentenced by Ms Adriana Ching on 16 May 2002 to nine months on the first charge and 16 months on the second charge, and she ordered that five months of the first charge should run consecutively to the sentence imposed on the second charge, thereby making a total of 21 months.

2. The first charge involves 17,000 pieces of obscene DVD/VCD covers and 309 pieces of obscene positive pre-sensitized plates. The second charge involves 51,582 pieces of obscene DVD/VCD covers, 6,011 pieces of obscene offset printing films and 88 pieces of obscene positive pre-sensitized plates. The two offences occurred on the same day in adjoining flats in an industrial building in Kwai Chung.

3. The appellant was the proprietor of a printing company which operated from the two units where the seized articles were found. Because of the economic depression, he encountered financial difficulties and succumbed to an offer by a person to print these DVD/VCD covers. For whatever reason he agreed to do the printing but declined to do it in his own factory. So the upshot was these covers were printed in another smaller factory and conveyed to the appellant's factory to be ultimately delivered to the person who ordered the covers.

4. The films were used to produce the plates which were then used to produce or to print the covers. The total number of covers that we are concerned with is 68,582. It was an admitted fact before the magistrate that these covers were obscene and that, in terms of depravity, they did not rank very high because the activities depicted on the covers did not include bestiality or sexual activities involving children.

5. Counsel for the appellant informs me that despite his thorough efforts at researching precedents involving covers as opposed to actual DVDs or VCDs, he was unable to find any precedents. He surmised that the reason for that could be that all cases involving covers were dealt with by way of summonses and the penalties imposed were all fines which is why there are no cases which went on appeal.

6. The learned magistrate was of the view that obscene covers were just as harmful as obscene VCDs or DVDs, because she took the view that without these lurid covers, customers would not be attracted into buying the tapes themselves. That may well be so, but it is a fact that the covers are all still photographs which, needless to say, are quite different from tapes which involve moving pictures.

7. One of the grounds of appeal advanced by Mr Chau is that the magistrate should have considered and decided on a community service order because the appellant was found suitable to receive such an order. In my view, and this is borne out by the precedents, these cases, involving possession or publication of obscene articles, merit an immediate custodial sentence and a community service order would be wholly inappropriate.

8. As regards the totality of sentence, counsel relies on the case of HKSAR v. Suen Shun Wing [2000] 2 HKC 319 where Woo JA considered previous cases and concluded that a 12 months' starting point would be appropriate. However, it is true to say that in all those cases that Woo JA considered, the appellants were selling or were in possession of tapes at what might be described as a retail level, whereas in the present case, it might be said that what the appellant was doing was on a wholesale level, albeit he was only responsible for producing one part of the eventual obscene DVD or VCD.

9. As the magistrate said, without these covers the DVDs and VCDs would not be as saleable as they would be if accompanied by covers. The number involved is quite substantial, almost 70,000 covers, which presumably would be used for 70,000 DVDs or VCDs.

10. One of the grounds relied upon by counsel is that inasmuch as these two offences occurred on the same day at adjoining flats and involved the same sort of illegal articles, the sentences should have been made concurrent instead of partly consecutive.

11. Mr Chau relies upon three cases which made the obvious point that if offences arise out of the same set of facts or the offences arise out of the same transaction, then the sentences should be concurrent and not consecutive. The first case he relies upon is the fairly old case of R. v. Lui Shu Tong [1961] HKLR 129 where Hogan CJ said at page 136 :

" We are of the opinion that the best course for a Court to adopt in passing sentences is to decide firstly what, in all the circumstances, including both the background of the offence and the offender, is an appropriate sentence for each offence. Then, the Court should consider whether any particular group of offences arises out of the same set of facts, so that it can be said that the whole group of offences are inter-connected with one another. Normally, it is more appropriate that the sentences on the various charges in such a group should be ordered to run concurrently with one another. ...."

The second case is HKSAR v. Liu Chi Keung [1999] 2 HKC 235, where the Court of Appeal held that :

" As all the charges were part of the same transaction, there was no proper basis for consecutive sentences. ...."

12. In the instant case, I am of the view that both offences arose out of the same transaction and therefore should have attracted concurrent sentences.

13. As regards the sentences imposed, the starting point of 12 months reduced to nine months for the first offence is entirely appropriate, albeit the magistrate obviously made a mathematical miscalculation when giving the appellant the full one-third discount by not reducing it to eight months.

14. As regards the starting point of 24 months adopted by her for the second offence, this is obviously on the high side. Mr Cheung, for the respondent, relies upon the case of HKSAR v. Tseung Lung Kan, HCMA723/2001 and 724/2001 where Bokhary J upheld a total sentence of 19 months' imprisonment for publication of a total of almost 6,000 obscene VCDs. The first charge attracted a starting point of 18 months, discounted to 12, and the second a starting point of 21 months, discounted to 14. The two sentences were made partly concurrent and partly consecutive, so that the total was 19 months' imprisonment.

15. Mr Chau rightly pointed out that that sentence was upheld because the second offence was committed while the appellant was on bail for the earlier offence, and the two offences were committed at the same shop and the time lapse was about one month.

16. In the instant case, what the appellant was doing was, as I said, arguably on a wholesale level, and the total number of covers is substantial. It cannot in my view be said that the starting point of 24 months adopted by the magistrate is manifestly excessive. However, in view of what I have said earlier on, I will make the two sentences concurrent so that the total sentence is reduced from 21 months to 16 months.

17. To that extent the appeal is allowed.