R. v. CHAN SHUI KI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.557 OF 1996

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J U D G M E N T

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1. The Appellant pleaded guilty to two charges : publishing an obscene article, and possession of obscene articles for the purpose of publication. He was fined $1,000 on the first charge and sentenced to 4 months imprisonment on the second charge.

2. He now appealed against the sentence of 4 months imprisonment on the second charge.

3. During a raid, 184 video tapes were found in the Appellant's shop from which a police officer had earlier bought 2 video tapes. The admitted facts were these tapes were "disgusting and filthy involving man and female sexual intercourse and their sexual organs were clearly seen".

4. The Appellant was 36 years old and had a record of 12 previous convictions though nothing similar. The magistrate considered the case of R. v. Lam Wing Ching MA641/90 where 6 months imprisonment was considered appropriate sentence for a similar offence involving 79 obscene tapes.

5. Mr Wong for the Appellant submitted that the magistrate should have viewed the tapes to consider the degree of depravity or obscenity of the tapes which was a factor to be taken into account in arriving at the proper sentence. It was also submitted that Lam Wing Ching was a bad case in which the degree of depravity or obscenity was far greater than that in the present case. Relying on AG v. Tang King Ming (1986) HKLR 210, Mr Wong submitted that the present case was an one off instance of transgression and should be more leniently dealt with.

6. In Tang King Ming, the Court of Appeal gave guidelines for sentencing offences of this nature. Immediate custodial sentences coupled with substantial fines were considered as the primary option in cases where a) the material is obscene; b) that the trade is flourishing in the face of existing sentences; c) the case constitutes a substantial contribution thereto so that; d) deterrence is a paramount consideration. Comparatively short sentences of imprisonment may well be considered adequate in mild to average cases. Fines or more lenient treatment should continue to be imposed in very small or "one-off" instances of transgression.

7. Even on the basis that these 186 tapes were no more deprave or obscene than that described in the facts and admitted by the Appellant, the degree of depravity or obscenity, though less than that in the case of Lam Wing Ching, cannot be regarded as slight. The magistrate was entitled to assess the sentence on this basis of depravity or obscenity without viewing the tapes themselves. The Appellant was operating a shop. It was a commercial operation. The number of video tapes involved cannot be regarded as very small. The magistrate considered that this type of trade rather than diminishing, had thrived in the area. On this basis, the sentence of 4 months imprisonment cannot be regarded as wrong in principle or manifestly excessive. The appeal against sentence is dismissed.