HKSAR v. TSANG BIU SUM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

1998, No. 405 & 406
(HCMA)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court)::

1. It is convenient to deal with these two appeals together. They both relate to similar subject matter namely raids which were undertaken of premises where obscene videos were found. The raids took place within a week of each other. On each occasion the Appellant was charged with publishing an obscene article and being in possession of it.

2. On each occasion a substantial quantity of videos were seized. The Appellant pleaded guilty to both counts on both occasions and was sentenced to a total of 6 months' imprisonment on each occasion. That meant that the Appellant has to serve a total of 12 months' imprisonment. It is against these sentences that he appeals.

3. The 1st Ground of Appeal is a complaint that the magistrate treated the commission of the successive offences as an aggravating factor. This was withdrawn by Mr. Wright who represented the Appellant before me. The Appellant did continue to operate in the way he did and this does indicate a scant regard for the law.

4. The 2nd Ground complains that as the magistrate appears not to have personally viewed the videos he would have been unable to assess the seriousness of the offences. There is considerable merit in this ground. The question as to whether it was incumbent upon the magistrate to view a sample of the videos was considered in the A.G. v. CHOW Kun-lap [1996] 2HKC 600. It is evident from this review that it is necessary to view tapes before a conclusion can be reached concerning the degree of obscenity exhibited in the tapes. Here as there would appear to have been no such viewing it is only fair to consider these articles at the lower end of the scale of seriousness. I say this notwithstanding the fact that in the agreed facts reference is made to oral sex, sodomy and bestiality.

5. It is also necessary to bear in mind the observation made by the magistrate concerning the prevalence of offences of this nature.

6. Having regard to all of the circumstances, I have come to the conclusion that the total sentences imposed were manifestly excessive. The magistrate appears to have given insufficient discount for the totality of the offences. In my view a proper sentence would have been to pass the sentences which he did pass but to order that 3 months of the sentence imposed on the second charge in Mag. App. 406 of 1998 should be served concurrently with the sentences imposed in Mag. App. 405 of 1998, thus resulting in the Appellant only having to serve a total sentence of 9 months' imprisonment. To this extent the appeal is allowed.