HKSAR v. SIU CHEE KEUNG

HCMA 1050/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1050 OF 2005

(ON APPEAL FROM KCCC 5495/2005)

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Before: Deputy High Court Judge Wright in Court

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J U D G M E N T

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1.  The Appellant appeals an aggregate sentence of 18 months imprisonment which was imposed upon him after he had entered a plea of guilty to and been convicted of three charges all involving obscene articles.  The first charge related to publication of obscene articles, five DVDs, on 27 August 2005 in premises described in the charge sheet:  the second, to a similar offence, also involving five DVDs, on 1 September 2005 committed in the selfsame premises: the third an offence of possession of 1838 obscene DVDs stored in a room on the same date.

2.  He says today that he was not present in the premises on 27 August and simply pleaded guilty to that charge as well so as to dispose of the matter.  He was represented.  There was an unequivocal plea of guilty.  There was agreement of the facts relating to that offence.  There is no appeal against conviction.  In the circumstances I do not propose to countenance an application for leave to appeal out of time.

3.  The Magistrate described the acts which were depicted in the various DVDs as recorded by the police.  They fell towards the midrange of levels of obscenity.

4.  Other than the plea of guilty, there was no substantial mitigation available to the Appellant although the Magistrate took into account all that was said on his behalf.  He noted, too, that the Appellant has appeared in court on 19 different occasions: since October 1998 he has been convicted of in excess of 20 offences involving both obscene articles and infringing copies of literary works.  He has spent substantial periods of time in jail.  The Magistrate took this into account in assessing his starting point as he was entitled to do.

5.  He took a starting point of 15 months in respect of each of the first two offences and 18 months in respect of the third offence, reducing all three by the usual one third for the pleas.  He then directed that the sentences on the second and third charges be served concurrently with one another as he regarded the offences as part and parcel of the same overall operation that day.  He considered the question of totality and directed that six months of the sentence on the first charge be served consecutively to the sentences on the second and third charges.

6.  The sentences imposed are well within the current sentencing range.  The aggregate sentence is in no way excessive for this offender in respect of these offences.  The appeal is dismissed and the sentences confirmed.

Appellant in person

Mr Leung Cheuk-yin, David, SGC of Department of Justice, for the Respondent