Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Suen Shun Wing

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date29 February 2000
Year2000
Judgement NumberHCMA1248/1999
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA001248/1999 HKSAR v. SUEN SHUN WING

HCMA001248/1999

HCMA 1248/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1248 OF 1999

(ON APPEAL FROM NKCC 7065 OF 1999)

____________________

BETWEEN
HKSAR Respondent
AND
SUEN SHUN WING Appellant

____________________

Coram: Hon Woo JA (sitting as an additional Judge of the Court of First Instance) in Court

Date of Hearing: 29 February 2000

Date of Judgment: 29 February 2000

_________________

J U D G M E N T

_________________

Hon Woo JA :

1. The Appellant was convicted on his own plea by magistrate Mr Mierczak of two charges, namely,

(1) possession of obscene article for the purpose of publication, contrary to s 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap 390 in that on 2 December 1999 at Shop 212, 2nd Floor, Sino Centre, Nos. 582-592, Nathan Road, Kowloon, Hong Kong, he possessed for the purpose of publication obscene articles, being 3392 obscene video compact discs ("VCDs"); and

(2) display of indecent matter, contrary to s 23(1) of the same Ordinance, in that on the same day and at the same place, he publicly displayed indecent matters, being 3392 pieces of obscene VCD paper covers.

2. The Magistrate adopted a starting point of two years' imprisonment for charge (1) and one of nine months' imprisonment for charge (2). Taking into account the guilty plea, he gave the Appellant the usual one-third reduction and passed a sentence of 16 months of imprisonment in respect of charge (1) and six months' imprisonment on charge (2). The sentences were ordered to run concurrently, making a total of 16 months' imprisonment.

3. It is against these sentences that the Appellant appeals.

4. Mr Michell-Heggs, on behalf of the Appellant, argues three substantive grounds of appeal to support his submission that the sentences were manifestly excessive or wrong in principle. He complains that the Magistrate failed to take sufficient account of the fact that despite the Appellant's 13 previous criminal records, there was no previous conviction of a similar nature. He also argues that the sentences should "not be set on the scale according to the mathematics of quantity" of the VCDs and display covers involved, but should rather be "according to the overall criminality" of the offences. Another ground is that the Magistrate appears to have overlooked the need to examine and assess the nature of the obscene material himself, thereby assuming the degree of obscenity and depravity in fact involved and sentencing the Appellant on a level of culpability which may not be appropriate.

5. In recent years, there have been a number of cases that involved sentencing on the possession charge, either referred to by counsel in their submissions or gleaned by me in the brief research that I have done in preparation for the hearing of this case. I will summarise them below.

6. In The Queen v LAM Wing-ching [1991] 1 HKLR 217, the appellant pleaded guilty to possession of 77 video tapes containing material of the most obscene kind, namely, simulated rape, intercourse with animals, homosexuality and group sex. He was 18 years of age and had a clear record, and he did not own the shop in which the obscene articles were found. After referring to AG v TANG King-ming [1986] HKLR 210, CA, Bewley J said that the proper sentence in bad cases such as the one before him was six months' imprisonment. However, in view of the age of the appellant, the judge imposed a Training Centre Order on him.

7. In The Queen v LO Chuen, MA 856/96 (15 August 1996, unreported), the appellant pleaded guilty to possessing 54 video tapes showing sexual intercourse between men and women as well as oral sex. There was a video in the shop so that customers who wanted a preview could watch. Having considered the two authorities referred to above, Stock J reduced the four months' imprisonment imposed on the appellant to three months but affirmed the activation of a suspended sentence of four months' imprisonment ordered by the magistrate for a similar previous conviction of the appellant. The judge ordered two months of the three-month term to run consecutively to the activated sentence, so that the appellant had to serve a total of six months.

8. In HKSAR v LAU Pak-ying, MA 636/97 and 637/97 (28 August 1997, unreported), the appellant pleaded guilty in two separate cases to one charge of possession of obscene article for the purpose of publication and one charge of publishing an obscene article. He admitted selling obscene VCDs and there was a large but unspecified number of obscene VCDs in the shop on both occasions. The appellant had 17 previous convictions but apparently none was similar. The magistrate sentenced him to six months' imprisonment and fined him $20,000 for the charges on each occasion, but ordered the prison terms to run concurrently. In effect, the appellant was to serve a total of six months and fined a total of $40,000. Yeung J took into account the financial capability of the appellant that the magistrate had failed to do and set aside the fines except for $1,500. There was no discussion of the degree of obscenity or depravity involved.

9. In HKSAR v NG Man Wah, MA 619/98 (24 September 1998, unreported), the appellant pleaded guilty to possession of obscene articles for the purpose of publication. The magistrate viewed two out of the 30 VCDs seized and commented that they were the most depraved material he thought he had ever seen, saying that the appellant's behaviour catered to the basic instincts of the sickest people within the community. After referring to TANG King-ming, LAM Wing-ching and AG v CHOW Kun Lap [1996] 2 HKC 600, CA, Nguyen J reduced the sentence of 12 months' imprisonment passed by the magistrate and substituted therefor a six months' term, while upholding the fine of $10,000.

10. HKSAR v LEUNG Siu Yin, MA 879/98 (30 September 1998, unreported) is another decision of Nguyen J. The appellant on his own plea was convicted of two charges of possession of obscene articles for the purpose of publication. The first charge involved 7,214 VCDs and 75 DVDs while the second charge another 1,247 VCDs and 3 DVDs. The obscene articles showed sexual intercourse and incidental activities connected with sexual intercourse. The magistrate adopted a starting point of six months for the first charge and reduced it to four months for the guilty plea. He took a starting point of three months for the second charge and reduced it to two months for the same reason and ordered the sentences to run concurrently. After referring to LAU Pak-ying, the judge opined that the magistrate did not give sufficient credit to the appellant for his previous good character and reduced the sentence for the first charge to one of three months' imprisonment.

11. In HKSAR v POON Leung Tak, MA 1195/98 (13 January 1999, unreported), the appellant was convicted on his own plea of one charge of publishing two obscene VCDs and another charge of possessing 1,433 VCDs for the purpose of publication. The VCDs contained material of the most disgusting nature, details of which were admitted by the appellant. The magistrate sentenced the appellant to six months' imprisonment for each offence, concurrent. Deputy Judge Jackson, as he then was, opined that at least 12 months' imprisonment for each charge as a starting point was appropriate and he increased the sentences to eight months in jail after reducing the starting point by one-third to take into account the guilty plea.

12. I also had on three previous occasions decided on sentencing appeals in respect of possession of obscene articles for the purpose of publication. In HKSAR v NGAI Yuk Ning, MA 1255/98 (18 March 1999, unreported), where the appellant was convicted after trial for possessing 354 VCDs at the bottom end of obscenity. He was 19 years of age and had three previous convictions, none of which was similar to the one before the magistrate. After considering HKSAR v TSANG Biu Sum, MA 405 & 406 of 1998 (Mayo JA, 23 July 1998, unreported), HKSAR v MAU Ting Sang, MA 1023 & 1024 of 1998 (Gall J, 15 December 1998, unreported), HKSAR v CHAN Kin Hung, MA 1025 & 1026 of 1998 (Deputy Judge Jackson, 8 January 1999, unreported) and the aforesaid POON Leung Tak, I...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT