HKSAR v. NAM CHAU FUNG

HCMA 781/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 781 OF 1999

(On Appeal from NKCC 3666 of 1999)

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J U D G M E N T

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1. The Appellant appeals against a sentence of 12 months' imprisonment imposed is respect of one charge of Publishing Obscene Articles, the obscene articles being 5 VCDs.

2. The Magistrate in sentencing took into account that this was the first time the Appellant committed the offence, that he was an employee and following the suggested tariff of 12 months' imprisonment as starting point. However, he took into account that the level of obscenity in relation to these VCDs was other than that at the lowest end of the scale and stated in his Reasons for Sentence that the level of depravity contained in the VCDs was serious, being of almost the worst nature.

3. The Magistrate did not, however, view those tapes himself. He relied on the admission of this Appellant as to the level of obscenity and the facts that were admitted in relation to the obscenity. They stated that the obscenity relates to scenes of sexual organs, sexual intercourse, oral sex, deviant sexual activity and bestiality involving dogs and horses.

4. On that basis, he adopted a starting point of 18 months' imprisonment. Having considered the facts of the case, I accept that a higher starting point can be justified in view of the serious nature of the obscenity but I consider that 18 months is too high a starting point. I allow the appeal to the extent of taking a starting point of 14 months, and sentence the Appellant to 10 months' imprisonment. The appeal is allowed to that extent.