HKSAR v. LAM CHUN CHOI

HCMA 606/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 606 OF 2001

(ON APPEAL FROM ESCC 1664/2001)

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JUDGMENT

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1. The appellant, Lam Chun-choi, was convicted on his own plea by Mr Henry Mierczak, Acting Principal Magistrate, at Eastern Magistracy on 30 May 2001 of an offence of publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene Articles Ordinance and of an offence of possession of obscene articles for the purpose of publication contrary to section 21(1)(b) of the same Ordinance. For the publication offence, he was sentenced to serve 2 months' imprisonment; for the possession offence, he was sentenced to serve 12 months' imprisonment, to be served concurrently. In addition, he was fined $20,000 in respect of the second offence. The magistrate conducted an inquiry and was satisfied that he had the means to pay it.

2. The appellant now appeals his sentences saying that they are too severe. The appellant is 39, he has previous convictions for living off the earnings of prostitution, managing a vice establishment, and possession of dangerous drugs. He was represented at trial by a lawyer engaged under the Duty Lawyer Service.

3. The facts were all too familiar. The appellant managed a stall at an arcade at 188 Wanchai Road in Hong Kong. The police made controlled purchases from him of five obscene video compact discs. They were the subject of the 1st charge. A raid followed and 2,860 other video compact discs, all of an obscene nature, were found at the stall. All depicted men and women engaging in sexual intercourse -- in short, the typical dirty movie.

4. In his reasons for sentence the magistrate said this:

"The message must be that those who possess these articles for publication go to prison. I was satisfied that both offences arose out of the same set of circumstances and so I order that they be served concurrently. I was further of the view that despite the penalties imposed, there was a growing concern that the growth of these activities, especially in this area and especially at 188 Wanchai Road. It was obvious to me that meaningful periods of imprisonment as well as fines should be imposed."

5. He then referred to HKSAR v Tang Kam-cheung, HKMA 937/2000 (unreported) in which I was the appeal judge and in which I reviewed earlier decisions of the court relating to sentences for these offences, and said this:

"There's a clear need for a 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."

6. I do not resile from what I said in that case. This case shows that, notwithstanding the meaningful sentences being imposed by magistrates on those who peddle in pornographic video compact discs, the trade still flourishes. Magistrates, therefore, will continue to pass meaningful sentences upon the peddlers and Court of First Instance judges will continue to uphold those sentences until the message gets through that it is unprofitable to engage in the trade.

7. The magistrate gave the appellant the usual one-third discount for his plea of guilty. He was correct to do so. The sentences, including the imposition of a meaningful fine of $20,000 for the second offence, are in no way manifestly excessive and they are certainly in no way contrary to principle.

8. When the appellant first came before me on 9 August, I adjourned the hearing of his appeal so that I could obtain a medical report upon his medical condition. I am told in that report that he has a history of illnesses, including one called "Buerger's Disease". That in 1997, because of that disease, his left toe was amputated. And that when he entered prison for his present offences, it was noticed that he had gangrene in his left little toe. He was sent for examination at Queen Elizabeth Hospital and the doctors there amputated his left leg below the knee. He made reasonable recovery from the operation and was discharged from Queen Elizabeth Hospital on 23 June and transferred to Stanley Prison Hospital. He has been provided with crutches and a false limb for his left leg. His health condition is "satisfactory".

9. It is clear to me that the appellant will receive proper medical care, including remedial physiotherapy and the provision of a proper prosthetic, whilst he is in prison. Indeed, given the fact that he is addicted to heroin, he will probably receive better care while in prison than he would if given his liberty and left to fend for himself. I see no reason why I should reduce his sentence because of his unfortunate disability.

10. Indeed, there is clear authority, R v Ho Mei-lin [1996] 4 HKC 491, that, except in the rarest of cases, a prisoner's medical condition is not a matter which a court will have regard to by way of mitigation. Although it may well be a matter for the Executive, if brought to the Executive's attention and deserving of consideration.

11. The appeal against sentence is dismissed.