HKSAR v. NG MAN WAH

HCMA619/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 619 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty to one charge of possession of obscene articles for the purpose of publication. He entered the plea to that charge on 1st June 1998 before Mr P.C. White, sitting at Western Magistracy.

2. On 5th June 1998, arrangements were made for the learned Magistrate to view two out of the 30 VCDs seized so that he could assess the degree of obscenity of those tapes. After the two tapes were played, the learned Magistrate commented that that was the most depraved material he thought he had ever seen. He said that the Appellant's behaviour catered to the basic instincts of the sickest people within our community. Then in the course of mitigation by the Appellant's then Counsel, the learned Magistrate stopped the Counsel and said that the material was the most depraved material catering for people of significant illness.

3. I think the learned Magistrate might have realized that his personal emotions might well prejudice his assessment of the sentence because shortly after that he said to the Appellant :

".... it's not appropriate for a magistrate to sentence a defendant when he feels a sense of anger, but in this case I can't help but feel a sense of anger. If I came back to the case in six months I'd still feel the same sense of anger. Your behaviour is appalling."

4. The facts of the case are that on 4th May 1998, three police officers entered a shop in Aberdeen where they found the Appellant, together with a male customer. They searched the shop and found the 30 VCDs in question. The VCDs were described in the Brief Facts of the Case as obscene articles describing sexual acts between females and animals, including dogs, pigs, cows and horses, and also sexual intercourse between males and females and oral sex between males and females. In mitigation on behalf of the Appellant, it was submitted that he had tried to get a job to stay away from dangerous drugs but could not and so agreed to take on this job as the shop attendant of that particular shop. It was said that he was not the proprietor of the shop, but only an employee. He has 21 previous convictions, none of which are similar to the present offence.

5. For this type of offence, whether the defendant is the proprietor or an employee, an immediate custodial sentence, coupled with a fine, if it can be shown that a profit has been derived by the defendant, would be inevitable. This was decided by the Court of Appeal in Attorney General v. Tang King Ming [1986] HKLR 210, where the Court said :

"1. Where the court is satisfied

(a) that the material is obscene;

(b) that the trade is flourishing in the face of existing sentences;

(c) that the case before it constitutes a substantial contribution thereto so that;

(d) deterrence is a paramount consideration;

immediate custodial sentences coupled with substantial fines should be considered as the primary option, in this cases, subject always to such factors of mitigation. ....."

6. In the Attorney General v. Chow Kun Lap [1996] 2 HKC 600, the Court of Appeal said, apparently by way of obiter, that :

"Where there is shown to be serious obscenity, even for a first offence, a sentence of imprisonment is appropriate and it is the duty of the sentencing court in each case to make its own assessment of the degree of obscenity involved."

7. In R. v. Lam Wing Ching [1991] 1 HKLR 217, Bewley, J. held that :

"Even in respect of first offenders, deterrent sentences would normally be imposed for this type of offence. A short period of imprisonment would be usual, except where the facts justified a more lenient course."

8. In answer to my question as regards whether the Courts should these days be as vigorous as they used to be towards these offences, in view of the fact that pornography apparently is available these days on the internet, Miss Ko, appearing for the prosecution, rightly contends that nevertheless people who trade in this business and who profit therefrom should be punished by the courts.

9. Mr Tsui, appearing for the Appellant, has accepted that an immediate custodial sentence is inevitable but submits that the sentence of 12 months imposed by the learned Magistrate is manifestly excessive.

10. I do not take Mr Tsui to be submitting that the fine of $10,000 also imposed by the learned Magistrate should be reduced. I agree that the sentence of 12 months' imprisonment imposed in this case is excessive. I am not saying that this sentence was passed by the learned Magistrate because of his personal feelings towards the contents of the VCDs. I think it is not in dispute that the contents to these VCDs are not only obscene but also very depraved. Nevertheless, I think account has to be taken of the fact that this Appellant has never committed any previous similar offences, and the fact that he was apparently only working as an employee in this shop.

11. There appears to be no tariff for this sort of offence involving employees who have never committed these offences before. In MA No. 636 and 637 of 1997, the sentences imposed were six months' imprisonment in each case, coupled with a substantial fine. In that case, the offences were committed on two separate occasions, seven days apart from each other. The sentences of six months' imprisonment on each charge were ordered to be served concurrently. Yeung J. in that case was only concerned with the amount of the fines involved and not with the length of the term of imprisonment.

12. Without attempting to lay down any precedent for this sort of offence, in my judgment, the appropriate sentence for this Appellant should be one of six months' imprisonment. The appeal is therefore allowed to that extent.