IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NOS.49 & 50 OF 2000
(ON APPEAL FROM TWCC3565 & 3570/1999)
Coram: Deputy Judge Tong in Court
Date of Hearing: 23 February 2000
Date of Judgment: 23 February 2000
J U D G M E N T
1. The appellant was charged with two separate counts of possession of obscene article for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap.390, Laws of Hong Kong. The number of obscene video discs involved were 411 and 331 pieces respectively.
2. The appellant pleaded guilty to the charges and was sentenced to two terms of three months in respect of each charge, to run consecutively.The learned magistrate also imposed a fine of $6,000 for each offence, and the bail money was deducted for the purpose of the fine.The appellant sought to appeal against the sentences.
3. The appellant had a total of 27 previous convictions including two similar offences. The video discs seized contained scenes of oralsex and anal intercourse. The learned magistrate stated in his Statement of Finding that such offences were prevalent in his jurisdictionand having considered the relevant authorities, he sentenced the appellant to a total of six months plus a fine of $12,000.
4. The ultimate terms of imprisonment imposed could not be said to be wrong in principle or manifestly excessive, although it wouldhave been desirable is the learned magistrate had stated his starting point and explained what discount, if any, was given to theappellant. However, regarding the financial penalty, there was no clear reference as to why a fine was also imposed.
5. The respondent had rightly drawn my attention to the fact that the appellant had disclosed to the probation officer the profit hehad made in connection with the business of selling obscene video discs and it was submitted that a financial penalty on top of theterm of imprisonment would not be wrong.
6. Having considered the circumstances, I took the view that it would be sufficient punishment for the appellant to be imprisoned forthe offences and be fined for $3,000 in relation to each offence. A total of $12,000 fine would appear to be excessive. I would allowthe appeal to this extent.
7. Hence the total fine for the two charges would be $6,000 instead of $12,000. The six months imprisonment would not be disturbed.
Mr David Leung, SGC of DPP, for the Respondent
Appellant in person, present