THE QUEEN v. WONG TIM CHOI

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 203 OF 1993

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J U D G M E N T

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1. In this case, the appellant was sentenced to 9 months imprisonment by the magistrate on 1st March 1993 for the offence of possession for the purpose of publication obscene articles, namely 101 video cassette tapes, contrary to s.21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390, Laws of Hong Kong. It is shown in the magistrate’s reasons for sentence that the appellant had two previous convictions in 1991 relating to obscene articles, and he had also two other convictions relating to obscene articles for which he was sentenced to a total term of 4 months imprisonment on 6th January 1993. Those two offences for which he was sentenced on 6th January 1993 were committed on 8th November 1992 after the commission of the offence on 28th July 1992 for which he was sentenced to 9 months imprisonment in the present case. These 9 months were ordered by the magistrate to run consecutively to the 4-month sentence imposed on 6th January 1993.

2. For the appellant, it is argued that the totality of the sentence must be looked at, and by reason of the 4 months and the 9 months imprisonments running consecutively, the appellant is to serve a total of 13 months. My attention is drawn to the case of Attorney General v Tang King Ming [1986] HKLR 210 where the Court of Appeal adopted English sentencing principles regarding this type of cases and opined at p.214E of the report as follows:

“immediate custodial sentences coupled with substantial fines should be considered as a primary option in these cases subject always to such factors of mitigation as may, in the individual case, justify more lenient treatment.”

3. In a more recent case, i.e., R. v Lam Wing Ching, Mag. App. No.641/90, decided on 31st August 1990 by my learned Brother Bewley J., where the appellant was 18 years of age and had a clear record for possessing 72 video tapes of the most obscene kind, the learned judge said at p.5 of his judgment:-

“This trade can be controlled only if people like the appellant are deterred from taking such jobs. Small fines will not have that effect and they cannot pay large ones. The proper sentence in bad cases such as this is, in my judgment, 6 months imprisonment.”

4. I am also referred to the case of Xenofhontos and Mace noted in the 1993 Supplement to Archold on p.116 in support of the argument that the totality of the sentences has to be taken into account.

5. Although it is argued that it appears clear that the magistrate did not have the benefit of having these authorities on sentencing before him when he considered the appropriate sentence to be passed, it seems to me also clear that the magistrate in this case had fully taken into account the 4 months imprisonment that was passed on 6th January 1993 when passing the sentence of 9 months imprisonment in this case and ordered it to run consecutively. He must have borne in mind the total length of imprisonment this appellant had to serve as he had taken the care to call for and consult the court file in regard to the 6th January 1993 sentence.

6. Considering the similar bad record of the appellant as from 1991, and considering the number of tapes involved, being 101, I am not disposed to say either that the magistrate erred in principle or that the sentence of 9 months to run consecutively to the previous sentence of 4 months is manifestly excessive. I do not think that it is a proper case for me to interfere. I dismiss the appeal.