HKSAR v. VY SINH KY

[English translation – 英譯本]

HCMA 456/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.456 OF 2003 

(ON APPEAL FROM TMCC 391 OF 2003)

J U D G M E N T

Introduction

1. The Appellant was charged with one count 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 convicted on 25 April 2003 upon his own plea and agreement with the brief facts put forward by the prosecution.  He was sentenced to 8 months’ imprisonment and fined $10,000.  He now appeals against sentence.

2. Following the appeal hearing, I allowed the appeal, quashed the order in respect of the fine, and ordered that the case be remitted to the magistrate for him to review his decision on the fine.  I also ordered that the case be dealt with as soon as possible.  I now set out the reasons for my judgment.

Brief facts

3. The facts of the case revealed that on 21 January 2003, in Shop A6, G/F Tsuen Fung Centre, 144-172 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong, the Appellant possessed the following obscene articles for the purpose of publication:

(i) 112 obscene video compact discs (VCDs) and

(ii) 102 obscene digital video discs (DVDs).

4. At the material time, the Appellant was touting for business outside the shop.  He admitted to the inquiring police officers that he was the person in charge of the shop.    He was arrested.  Under caution, he admitted that the discs on display in the shop were all pornographic discs and DVDs.  The discs contained scenes showing explicit sexual acts between men and women and their sexual organs.  The Appellant had taken issue with the obscenity of the seized discs and subsequently, upon instruction by the magistrate, the discs were sent to the Obscene Articles Tribunal (“OAT”) for determination.  The Appellant only pleaded guilty after the discs were found by the OAT to be obscene.

5. In the course of sentencing, the magistrate had randomly inspected the disc covers in court.

Grounds of appeal

6. Mr Andy Hung, Counsel for the Appellant, made it clear that the Appellant is only appealing against the $10,000 fine.  The grounds of appeal are as follows:

First ground

The magistrate imposed the $10,000 fine on the Appellant without having made sufficient inquiries of his financial position.  In support of his argument, Mr Hung cited the following cases: 

HKSAR v. Lau Pak Ying HCMA 636 & 637 of 1997;

R v. Ki Chor On [1996] 2 HKC 361;

HKSAR v. Lai Siu Fai & Anor [1998] 3 HKC 490.

Second ground

When assessing the Appellant’s financial position, the magistrate failed to have proper regard to the fact that a $10,000 fine would be financially crippling to the Appellant;

Third ground

After the fine was imposed, the Appellant mentioned once and again that his bail money was a loan from someone.  The bail money should not have been applied to pay the fine without the Appellant’s consent.

7. The case of HKSAR v. Ng Chi Ming HCMA 362, 363 & 364 of 2000 was cited in support of this argument.

The respondent’s reply

8. Ms Irene Poon, Government Counsel, appeared for the Respondent.  She made the following submissions.

9. The maximum penalty for the type of offence in question is 3 years’ imprisonment plus a fine of $1 million.  In the present case, the magistrate sentenced the Appellant to 8 months’ imprisonment and fined him $10,000.  The sentence cannot be said to be manifestly excessive or wrong in principle.  The Appellant is not a first offender as he had two similar previous convictions.  In light of this, the sentence can even be considered lenient.  (See HKSAR v. Ho Kee-pui, HCMA No. 224 of 2003 and HKSAR v. Po Ki-chiu, HCMA No. 209 of 1999).

10. On top of the custodial sentence, the magistrate ordered the Appellant to pay a fine of $10,000.  He reasoned that those who committed similar offences should be alerted to the fact that they could gain nothing from those illegal activities.  He therefore imposed a fine on the Appellant to achieve deterrence.  This approach was correct in principle and therefore beyond criticism.  (See HKSAR v. Cho Tat-pong, HCMA 1012 of 2002).  Furthermore, a $10,000 fine cannot be said to be excessive.  (See HKSAR v. Cheung Kwai-ho, HCMA No. 673 of 2001, [2001] 3 HKLRD J9, [2001] HKEC 1288 and HKSAR v. Tseung Lung-kan, HCMA No. 723 of 2001, [2001] 3 HKLRD J8, [2001] HKEC 1290).    

Reasons for sentence

11. The magistrate’s reasons for sentence are as follows (page 17 of the Appeal Bundle):

5. Having considered all the facts of the case and the mitigation put forward by the defendant,  I adopt a starting point of 12 months.  Although the defendant only pleaded guilty at a relatively late stage, I still give him a one-third discount (see HKSAR v. POON KI KIU HCMA No. 209/1999) (see HKSAR v. YU MAN LUNG HCMA No. 724/1999).  The main factor in considering the appropriate sentence for this offence is deterrence, and the number of pornographic discs possessed by the offender is not a crucial factor.  The defendant is therefore sentenced to 8 months’ imprisonment.

6. Moreover, this increasingly prevalent crime should be curbed so that young people will not have easy access to these harmful pornographic discs.  Those who commit this crime should also be alerted to the fact that they will gain nothing from this illegal activity.  To these ends, in addition to a custodial sentence, a fine should be imposed on these offenders in order to serve deterrent purposes.  (see HKSAR v. TANG KAM CHEUNG HCMA No. 937/2000).  In the present case, the defendant committed this offence shortly after he was released from prison.  This, coupled with his 2 similar previous convictions, means that he was not remorseful at all, as he continued to defy the law.  The defendant in this case did not plead guilty at the earliest opportunity; rather, he took issue with the obscenity of the discs.   It was therefore necessary to send the discs to the Obscene Articles Tribunal for determination, resulting in a waste of manpower and resources.   For the above reasons, I am of the view that apart from a custodial sentence, the defendant should also be fined, so that he will understand that selling pornographic discs will earn him no profits.  I have considered all the facts of the case, the defendant’s background and his financial position.  In the circumstances, the defendant is sentenced to 8 months’ imprisonment and fined ten thousand dollars.  (The maximum penalty for this offence is 3 years’ imprisonment and a fine of one million dollars).

Judgment

12. Having considered the submissions made by both sides, the aforesaid Reasons for Sentence and transcript of proceedings, as well as the relevant authorities, I am of the view that in the present case, the magistrate did not have sufficient regard to the Appellant’s financial position when he imposed the $10,000 fine, nor did he consider whether the $10,000 fine would be financially crippling to the Appellant – in particular, given that the Appellant was newly released from prison at the time of committing the present offence, on what basis did the magistrate believe that the Appellant was capable of paying the $10,000 fine?  As the Appellant was not legally represented at the time, the magistrate should have been doubly cautious in dealing with matters concerning the Appellant’s financial position.

13. According to the transcript (page 24, L-N), after the magistrate imposed the $10,000 fine, the Appellant said:

D1 : Your Worship, I borrowed this bail money from someone.  If I don’t repay the money, I will be,well, you know, after I serve [the sentence] and am released from prison, Your Worship.

Magistrate: Anything else?

D1: I won’t be able to earn money to make repayment, Your Worship.

Magistrate: You’ll make the arrangement yourself then.

D1: I won’t be able to make repayment, Your Worship, because I really borrowed the bail money from a loan shark.

The learned magistrate did not seem to have assessed the veracity of what the Appellant said.

14. The transcript does not record that the magistrate had ordered that the bail money was to go to the fine.  Of course, if a magistrate is minded to have the bail money go to a fine, he should give the defendant an opportunity to address him before he makes the order.  If the defendant says that the bail money does not belong to him, the magistrate has to decide whether or not to accept what the defendant says.  Absent consent by the defendant, the magistrate should not make an order for the bail money to go to the fine.

15. In the present case, I entirely agree with the magistrate’s approach of imposing a fine on top of a custodial sentence.  My only concern is over his failure to consider the aforesaid matters when he imposed the $10,000 fine.

16. For the above reasons I quash the order in respect of fine and remit the case to the magistrate.  The Appellant will have an opportunity to address the magistrate on his financial status.  The Appellant will also have an opportunity to submit to the court any document/evidence which shows that his bail money came from a ‘loan shark’.

17. I specifically request the Legal Aid Department to liaise with the Duty Lawyer Service of the relevant magistracy so that the Appellant can be assisted by a duty lawyer at the hearing.