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Hksar v Choy Wing Wah

Judgment Cited in Precedent Map Related
Vincent
Judgment Date14 September 2001
CourtHigh Court (Hong Kong)
Judgement NumberHCMA717/2001
Subject MatterMagistracy Appeal
HCMA000717/2001 HKSAR v. CHOY WING WAH

HCMA000717/2001

HCMA 717 and 718/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 717 and 718 OF 2001

(ON APPEAL FROM ESC 2060 and 1829 of 2001)

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BETWEEN
HKSAR Respondent
AND
CHOY WING WAH Appellant

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Coram: Hon Beeson J in Court

Date of Hearing: 14 September 2001

Date of Judgment: 14 September 2001

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to one count of Possession of an Obscene Article for the Purpose of Publication in respect of one case ESCC2060/2001 (HCMA 717/2001) and on the same day pleaded guilty to Publishing Obscene Articles and Possession of Obscene Articles in respect of ESCC1829/2001 (HCMA 718/2001). At the Appellant's request the Magistrate dealt with the sentencing of both cases together.

2. The Magistrate on the first case sentenced the Appellant to 12 months' imprisonment plus a fine of $20,000 and in the second case, on the charge of publishing, to 2 months' imprisonment and on the second charge, possession, to 12 months' imprisonment. The 2 terms in the second case were ordered to be concurrent and a fine of $20,000.00 was imposed in that case also. The Magistrate took totality into account and ordered that 6 months run concurrently and 6 months run consecutively to the sentence already imposed in ESCC 2060/2001. The total sentence of imprisonment therefore was 18 months and fines were $40,000.00 in total.

3. Today the Appellant appeals against sentence, not in respect of the imprisonment term, that ground having been abandoned, but on the ground that the fines are too heavy and that the learned Magistrate failed to make sufficient inquiries as to the financial capacity of the Appellant to pay any fine before he imposed the fines.

4. I should state at the outset that it is quite clear that the Magistrate imposed proper prison terms in these cases. I note that in fixing the starting point he did not take account, as he could have done, of the fact that the Appellant had committed the offences in the second case whilst on bail for the first . He was aware of the fact, but chose not to increase the usual starting point. He noted that the offences were serious and prevalent in Hong Kong and that the 2 cases had been committed 18 days apart. All offences took place at 188 Wan Chai Road, which is notorious for the sale of this type of goods. A large quantity of obscene articles was found on each occasion - 1,724 and 1,608 respectively. Clearly a custodial sentence had to be imposed. The Magistrate took a level of obscenity at the lower end of the scale in fixing the starting point.

5. The Magistrate was aware that the maximum penalty for Possession of Obscene Articles is 3 years' imprisonment and a maximum fine of $1,000,000.00. He took the view, correctly, that these were commercial operations. He bore in mind the case of HKSAR v. Tang Kam Cheung [2000] 3HKLRD which supported "stern penalties, involving imprisonment for meaningful periods and fines" for those dealing in pornographic VCDs.

6. For the first case, the Appellant was represented by the Duty Lawyer who put before the Magistrate the personal particulars of the Appellant. He was married with a wife and a daughter. He committed the offence because he had been unemployed for quite a long time, he understood the consequences of his action would be a custodial sentence and he asked the court to impose a light sentence. That was all the Duty Lawyer said that might be relevant to...

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