R. v. LEUNG KON CHUNG

1997, NO. MA 121

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

(On Appeal from ESC 5216 of 1996)

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J U D G M E N T

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1. The applicant LEUNG Kon-chung pleaded guilty to a charge of publishing an obscene article, namely one magazine. He was originally also charged with another accused jointly on a charge of possession for the purpose of publication of obscene article, namely 554 magazines and 52 video tapes.

2. The prosecution offered no evidence against the applicant in respect of that joint charge, whereas his co-accused pleaded guilty.

3. On the charge of publishing an obscene article, the applicant was sentenced to nine months' imprisonment. His co-accused, in respect of the charge of possession of 554 obscene magazines and 52 obscene video tapes, was also sentenced to the same period of nine months' imprisonment.

4. There is no dispute that at the material time the applicant was employed by his co-accused in a shop which is shop 238 at this rather infamous shopping arcade, known as the 'Computer Sound' at 298 Hennessy Road, Wanchai.

5. The applicant, the fact of the case suggest that, sold an obscene magazine to an undercover police officer for $250 which form the subject matter of the charge to which he pleaded guilty. There was a subsequent search of this particular shop and the search resulted in the seizure of the 554 other magazines and the 52 video tapes, the subject matter of the other charge to which the co-accused also pleaded guilty. There is also no dispute that the co-accused was the boss of the shop and he employed the applicant to run the shop.

6. The photographs in the magazine depict naked young girls performing obscene sexual acts or posed. There were materials of abnormal sexual behaviour, including sadism and machismo(?). As far as this particular magazine sold by the applicant to the undercover police officer is concerned it contained a picture of a young girl of about eight years of age posing in a provocative pose and there was also an obscene display of her genitals. Suffice to say that there's seems no dispute that the photographs in the other magazine are equally offensive.

7. The learned magistrate quite rightly observed that it was a worse type of case involving obscene items when young children were exploited. He is in my view also right in deciding to impose an immediate custodial sentence, although both the applicant and his co-accused have clear records. It is in my view clearly right to impose a deterrent sentence for an offence of this type. What concerns the court was the failure on his part, in my view, to differentiate between the applicant and his co-accused so far as the question of sentence was concerned.

8. The applicant was charged in connection with only one magazine when his co-accused was charged in connection with 554 magazines and 52 video tapes. It was also not disputed that the applicant was an employee, employed by his co-accused. I am of the view that the aforesaid two matters justify a distinction to be drawn between the applicant and his co-accused so far as sentence is concerned.

9. There is in my view a justifiable sense of grievance on the part of the applicant when he received the same sentence of nine months' imprisonment as that of his boss in the light of the nature of the charge and the background of this matter. While I do not to propose to say that the sentence on his co-accused is in any way excessive but I am of the view that no defendant ought to be allowed to leave a court of law with any justifiable sense of grievance. In the light of the matter that I have just mentioned, I think it is right that the court should reduce the sentence from one of nine months' imprisonment to one of six months' imprisonment.

10. The application for leave to appeal against sentence is therefore allowed and the original sentence is quashed and in substitution thereof a sentence of six months' imprisonment.