HKSAR v. NG WAH KIT

HCMA 626, 627, 628/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOS. 626, 627, 628 OF 2001

(ON APPEAL FROM NKCC 3671, 3335, 3668/2001)

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J U D G M E N T

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1. The appellant, Ng Wah-kit, on 8 June 2001, pleaded guilty before Mr David Dufton, Acting Principal Magistrate, at North Kowloon Magistracy in three separate cases each involving an offence of publishing obscene articles contrary to section 21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390. He was represented at trial by a lawyer from the duty lawyer service.

2. The admitted facts were that on 14, 23 and 28 May 2001, the appellant was found inside a shop in 133 SIM City in Shantung Street, Mongkok, soliciting people to buy obscene video compact discs. On each occasion there were a great many obscene video compact discs displayed inside the shop, and on each occasion the appellant sold four of these discs to an undercover police officer. The discs were later viewed in the presence of the appellant and the police and found to be obscene. They depicted acts of sexual intercourse between men and women and other sexual acts.

3. The appellant committed the offences in Appeal No. 628/2001 whilst on court bail for the offences comprised in Appeal No. 627/2001 and he committed the offences comprised in Appeal No. 626/2001 whilst on bail for both preceding offences.

4. Before me, the appellant argues that the sentences are too severe; he also says that he was not aware that he would receive an immediate prison sentence for these offences.

5. In passing sentence, the magistrate considered the appellate decisions of the Court of First Instance in Yu Man Lung, Magistracy Appeal 704/1999, and Chung Yun Hung, Magistracy Appeal 1245/1999, (both unreported) where the court upheld starting points after trial, of 12 and 15 months' imprisonment, respectively, for these offences. The magistrate observed, quite rightly, that this approach to sentencing for this offence has been regularly followed and he gave by way of example of this, the appellate cases of Tang Kam Cheung, Magistracy Appeal 937/2000, Tan Po Jun, Magistracy Appeal 1351/2000, Chan Mun Tong, Magistracy Appeal 1350/2000, and Cheng Koon Chau, Magistracy Appeal 176/2001.

6. He commented that Yu Man Lung and Chung Yun Hung were both appeals against sentences imposed by the Principal Magistrate at North Kowloon Magistracy and observed that the situation as described in the judgments remains unchanged.

7. He said that 133 SIM City is a place which is notorious for the sale of obscene VCDs. That this dirty trade continues to flourish, with new cases coming before his court every single day, and that the offence remains a prevalent one within North Kowloon Magistracy's jurisdiction.

8. In passing sentence, the magistrate took into account the appellant's pleas of guilty and the fact that he had no similar convictions.

9. He also took into account the mitigation advanced on behalf of the appellant. He was aware that the appellant claimed to have committed the offences because he needed money to pay for his son's computer and his daughter's school fees in the Mainland. He also took into account the contents of a letter the appellant placed before him and of all that was said in court by the appellant and his son.

10. The duty lawyer claimed that the appellant had lapsed into drugtaking and requested to be sent to a drug addiction treatment centre. The magistrate commented that, whilst not sentencing the appellant on his record, he noted that he had been sentenced to treatment in a drug addiction treatment centre in 1996 and 1998. He was satisfied that a further period of treatment in such a centre was inappropriate and declined to call for a suitability report. He was perfectly correct to make that decision.

11. The magistrate was satisfied that starting point sentences of 12 months' imprisonment in respect of the case that is now Appeal No. 627/2001, and 15 months' imprisonment in the cases that are now Appeal Nos. 628 and 626/2001, were proper ones. He gave full credit for the appellant's pleas of guilty and reduced the sentences to ones of 8 and 10 months' imprisonment. He took account of the totality principle and ordered the appellant to serve 5 months consecutive and 5 months concurrent in both Appeal Nos. 628 and 626/2001; to the sentence of 8 months' imprisonment, making a total sentence of 18 months' imprisonment. He was satisfied that a total sentence of 18 months properly reflected the appellant's culpability.

12. Those sentences are not manifestly excessive, neither are they contrary to principle. Given what the magistrate said in his reasons for sentence about the prevalence of this offence within the jurisdiction of North Kowloon Magistracy, it is obvious that the message is not getting through to those who engage in this trade that offenders will receive substantial immediate prison sentences. It is high time that message got through. From what the appellant told me, when he claimed not to have been aware that he would be imprisoned for his offences, it may well be that the message is not getting through. I hope that the appellant while in prison, when he speaks to his fellow inmates, will make sure that it does get through. The time may well be coming when magistrates will need to consider a stiffening of the sentences for this offence in order to stamp out this dirty trade. It should be remembered that the maximum sentence for this offence is 3 years' imprisonment and a fine of $1,000,000.

13. I have given serious consideration as to whether or not I should exercise my powers under section 119(1)(e) of the Magistrates Ordinance and increase the appellant's prison sentences; after all, he had the temerity to commit 2 further offences whilst on bail for the first offence. However, I have decided that the mitigation he advanced to me, which was the same as that he advanced to the magistrate, persuades me that I should not increase his sentences. He may count himself lucky for that.

14. The appeal is dismissed.