HKSAR v. LO WAI SAN

HCMA216/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.216 OF 2006

(ON APPEAL FROM KTCC986 OF 2006)

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

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

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

J U D G M E N T

 -----------------------

1. This is an appeal by the appellant against the sentences passed upon him by Miss Julia Livesey on 16 February 2006 at Kwun Tong Magistrates’ Court.

2. Upon his pleas of guilty, he was sentenced to four months’ imprisonment for the offence of publishing obscene articles, namely 8 obscene DVDs, contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 (“the Ordinance”) and to 12 months’ imprisonment and a fine of $5,000 for the offence of possession of obscene articles, namely 10,896 obscene DVDs for the purpose of publication, contrary to section 21(1)(b) of the Ordinance.  Both sentences were ordered to run concurrently.  He was therefore sentenced to a total term of 12 months’ imprisonment and a fine of $5,000.

3. On the evening of 12 January 2006, an undercover police officer purchased 8 obscene DVDs from the defendant in premises on the 7^th floor of the Manly Commercial Building in Mongkok.  A large number of DVDs were on display in the premises.  Subsequently a total of 10,896 further obscene DVDs were seized from the premises.

4. The discs depicted sexual intercourse between a man and a woman, oral sex and sexual organs.  The magistrate rightly commented that there was no aggravating feature by reason of the nature of the obscenity. 

5. The appellant who was aged 44 had been before the courts on 14 previous occasions, four of which related to matters of a similar nature.

6. In her Reasons for Sentence, the magistrate said this :

“There is ample authority that directs that offences of this nature are prevalent and that immediate custodial sentences are appropriate even for first offenders of young age, when training centre may be appropriate.  The starting point is 9 to 12 months for first offenders.  In the circumstances of this defendant I considered that a starting point of 18 months was appropriate of the 2^nd charge and I gave him full credit for his pleas of guilty.  No other matters were put in mitigation that in my judgment warranted any further reduction in sentence.  I directed that both the sentences were to run concurrently, as they arose out of the same incident.  Substantial sums of money are made in this trade.  The fine was paid from his bail money by consent.”

7. The appellant’s written notice of appeal simply alleges that the sentences were too severe.

8. Before the court today, he has made two points.  Firstly, he alleges that of the 10,896 discs to which Charge 2 relates about 3,000 were either blank or included discs which had been passed by the authorities in Hong Kong.

9. Secondly he alleges that the $5,000 fine which was deducted from his bail money was money borrowed by his mother from three friends.

10. I am satisfied that the reasons given by the magistrate for the sentences imposed and the sentences themselves cannot be criticized.

11. At the time the appellant entered his plea, he admitted that the police officer had watched all the discs that are the subject to the two charges and that they were obscene.  Even if, as the appellant now alleges and despite his earlier admission, 3,000 of the 10,896 discs were not obscene, the sentence on Charge 2 was well within the range of sentences imposed by the courts in similar cases and for even smaller numbers of offending discs.  (See for instance Lam Chung Leung,HCMA595/2002, Tang Kam Cheung, HCMA937/2000 and HKSAR v. Cheng Koon Chau, HCMA176/2001).

12. It was proper for the magistrate to impose a fine in addition to a term of imprisonment on Charge 2.  As the magistrate commented these were offences committed for financial gain.  The magistrate had enquired of the appellant’s legal representative whether the fine could be taken from the appellant’s bail money and his lawyer had agreed.  The court was entitled to act upon the consent of the appellant’s legal representative.

13. It is worthwhile repeating the words of Lugar-Mawson J in the case of HKSAR v. Tang Kam Cheung,HCMA937/2000 :

“There is a clear need for a firm response against those who peddle in pornographic VCDs.  The message needs to sent out to offenders and their legal advisors 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.”

14. I dismiss the appeal of the appellant.