HKSAR v. HUNG HEUNG LAM

HCMA670/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 670 OF 2002

(On appeal from ESCC Nos1417, 1609 and 1800 of 2002 )

---------------------------

---------------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant, Hung Heung Lam, appeared at Eastern Magistrates' Court on 26 June 2002. He faced three separate cases and they were all brought on before the same magistrate to be disposed of together. Each case involved two charges :

(a)	publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390; and
(b)	possession of obscene articles for the purpose of publication, contrary to section 21(1)(b) of that ordinance;

and he pleaded guilty.

2. The offences arose on three separate occasions, namely :

(a)	on 29 April 2002, at Shop 215, 188 Wanchai Road, involving 1,277 VCDs (ESCC1417/2002);
(b)	on 10 May 2002, at Shops 153-4, 188 Wanchai Road, involving 3,174 VCDs (ESCC1609/2002); and
(c)	on 27 May 2002, again, at Shops 153-4, 188 Wanchai Road, involving 2,289 VCDs (ESCC1800/2002).

For these offences, the learned magistrate imposed the following sentences :

(a)	for the two offences in ESCC1417/2002, concurrent sentences of imprisonment of 10 months together with a fine of $10,000 on each charge;
(b)	for the two offences in ESCC1609/2002, concurrent sentences of 10 months together with a fine of $10,000 on each charge; of the 10 months, five months were to be served consecutively to ESCC1417/2002; and
(c)	for the two offences in ESCC1800/2002, concurrent sentences of 10 months together with a fine of $12,000 on each charge; of the 10 months, six were to be served consecutively to ESCC1609/2002.

The overall sentences were 21 months' imprisonment together with fines of $64,000. He now appeals against those sentences, saying simply that they are too severe.

3. The facts of each case are very similar. Control purchases of small quantities of VCDs were made from the appellant at the shops in question. This was the basis of the 1st charge in each case, that of publishing an obscene article. A raid followed each purchase when larger quantities of discs were seized at the shop. The appellant was in possession of these quantities of VCDs and this formed the basis of the 2nd charge in each case. A sample of the VCDs seized in each case was viewed, and were seen to contain scenes of explicit sexual acts of males and females with particular focus on the sexual organs of the participants.

4. The appellant had been to court before, in November 2002, for exactly the same offences when he was sentenced to eight months' imprisonment and was fined a total of $15,000. I do not know when he was released from prison for those offences but it plainly cannot have been long before he was repeating his crime, and, it would appear from the record, at the same premises. In mitigation, the appellant told the magistrate he had "found his father and mother two days ago" and that committed the offences because he had been unable to find work after his release from prison.

5. In his Reasons for Sentence, the learned magistrate noted that the appellant's earlier prison term had not deterred him from repeating the offence. He pointed out that the shopping center at 188 Wanchai Road is a notorious outlet for the sale of obscene VCDs and has been so for several years, and that despite increasingly heavy sentences the trade continues to thrive. Experienced magistrates will be well aware of such matters arising within their own jurisdiction. The learned magistrate noted the aggravating feature that the 2nd and 3rd offences had been committed whilst the appellant was on bail for the 1st offence, and that he worked :

".... in the front line of a commercial enterprise which had no difficulty in re-stocking after seizure of the stock by the authorities. ..."

Comments which are, with respect, entirely proper.

6. He took starting points of 15 months for each offence and reduced them by a third for the guilty pleas offered by the appellant in each case, ordering the sentences to run concurrently. In my view, sentences of 15 months after trial cannot be complained about. Indeed, that is the level of sentence confirmed on appeal in a number of recent cases. See, for examples, HKSAR v. Chan Yuet Wing, HCMA714/1999; HKSAR v. Chung Yun Hung, HCMA1245/1999; HKSAR v. Tan Po Jun, HCMA1351/2000 and HKSAR v. Chan Mun Tong, HCMA1350/2000. The magistrate arrived at a total of 21 months after considering the totality of the sentences he was passing and in this he cannot be faulted.

7. The imposition of fines in addition to prison terms for these offences were well recognized. In HKSAR v. Ng Chi Man [1999] 1 HKC 632, Power VP in the Court of Appeal said this :

"There is a clear need for firm response against those who peddle in pornographic VCDs. The message needs to be sent out to offenders and their legal advisers that stern penalties involving imprisonment for meaningful periods and fines will be imposed. Magistrates need to be assured that such sentences will be upheld if appealed."

8. In the present case, the learned magistrate made careful enquiries about the proper availability of funds to pay fines and I am satisfied that the level of fines is not so out of line with current sentencing levels as to justify interference.

9. The appellant's persistence together with the large quantities of VCDs involved amply justify the sentences imposed. This appeal against sentence is dismissed.