HCMA 606/2001







HKSAR Respondent


Coram: Hon. Lugar-Mawson J in Court

Date of Hearing: 17 August 2001

Date of Judgment: 17 August 2001




1. The appellant, Lam Chun-choi, was convicted on his own plea by Mr Henry Mierczak, Acting Principal Magistrate, at Eastern Magistracyon 30 May 2001 of an offence of publishing an obscene article, contrary to section 21(1)(a) of the Control of Obscene Articles Ordinanceand of an offence of possession of obscene articles for the purpose of publication contrary to section 21(1)(b) of the same Ordinance.For the publication offence, he was sentenced to serve 2 months’ imprisonment; for the possession offence, he was sentenced to serve12 months’ imprisonment, to be served concurrently. In addition, he was fined $20,000 in respect of the second offence. The magistrateconducted an inquiry and was satisfied that he had the means to pay it.

2. The appellant now appeals his sentences saying that they are too severe. The appellant is 39, he has previous convictions for livingoff the earnings of prostitution, managing a vice establishment, and possession of dangerous drugs. He was represented at trial bya lawyer engaged under the Duty Lawyer Service.

3. The facts were all too familiar. The appellant managed a stall at an arcade at 188 Wanchai Road in Hong Kong. The police made controlledpurchases from him of five obscene video compact discs. They were the subject of the 1st charge. A raid followed and 2,860 othervideo compact discs, all of an obscene nature, were found at the stall. All depicted men and women engaging in sexual intercourse– in short, the typical dirty movie.

4. In his reasons for sentence the magistrate said this:

“The message must be that those who possess these articles for publication go to prison. I was satisfied that both offences aroseout of the same set of circumstances and so I order that they be served concurrently. I was further of the view that despite thepenalties imposed, there was a growing concern that the growth of these activities, especially in this area and especially at 188Wanchai Road. It was obvious to me that meaningful periods of imprisonment as well as fines should be imposed.”

5. He then referred to HKSAR v Tang Kam-cheung, HKMA 937/2000 (unreported) in which I was the appeal judge and in which I reviewed earlier decisions of the court relating to sentencesfor these offences, and said this:

“There’s a clear need for a firm response against those who peddle in pornographic VCDs. The message needs to be sent out to offendersand their legal advisers that stern penalties involving imprisonment for meaningful periods and fines will be imposed. Magistratesneed to be assured that such sentences will be upheld if appealed.”

6. I do not resile from what I said in that case. This case shows that, notwithstanding the meaningful sentences being imposed by magistrateson those who peddle in pornographic video compact discs, the trade still flourishes. Magistrates, therefore, will continue to passmeaningful sentences upon the peddlers and Court of First Instance judges will continue to uphold those sentences until the messagegets through that it is unprofitable to engage in the trade.

7. The magistrate gave the appellant the usual one-third discount for his plea of guilty. He was correct to do so. The sentences, includingthe imposition of a meaningful fine of $20,000 for the second offence, are in no way manifestly excessive and they are certainlyin no way contrary to principle.

8. When the appellant first came before me on 9 August, I adjourned the hearing of his appeal so that I could obtain a medical reportupon his medical condition. I am told in that report that he has a history of illnesses, including one called “Buerger’s Disease”.That in 1997, because of that disease, his left toe was amputated. And that when he entered prison for his present offences, it wasnoticed that he had gangrene in his left little toe. He was sent for examination at Queen Elizabeth Hospital and the doctors thereamputated his left leg below the knee. He made reasonable recovery from the operation and was discharged from Queen Elizabeth Hospitalon 23 June and transferred to Stanley Prison Hospital. He has been provided with crutches and a false limb for his left leg. Hishealth condition is “satisfactory”.

9. It is clear to me that the appellant will receive proper medical care, including remedial physiotherapy and the provision of a properprosthetic, whilst he is in prison. Indeed, given the fact that he is addicted to heroin, he will probably receive better care whilein prison than he would if given his liberty and left to fend for himself. I see no reason why I should reduce his sentence becauseof his unfortunate disability.

10. Indeed, there is clear authority, R v Ho Mei-lin [1996] 4 HKC 491, that, except in the rarest of cases, a prisoner’s medical condition is not a matter which a court will have regard to by way ofmitigation. Although it may well be a matter for the Executive, if brought to the Executive’s attention and deserving of consideration.

11. The appeal against sentence is dismissed.

(G.J. Lugar-Mawson)
Judge of the Court of First Instance of the
High Court


Ms Ada Chan, GC, of the Department of Justice, for HKSAR

Appellant, Lam Chun-choi, in person