HKSAR v. HUI TAI KO

bjbj pellant ___ Before: Deputy High Court Judge Line in Court Date of Hearing: 6 July 2007 Date of Judgment: 6 July 2007 ___

J U D G M E N T ___ 1. This is an appeal against a sentence passed upon two charges of possessing 48,252 obscene DVDs for the purpose of publication. The nature of the obscenity was not all that grave, described by the Magistrate as being of a relatively low order of heterosexual activity without any scenes of extreme depravity. The Magistrate regarded the number of discs as being an aggravation and took a starting point of 2 years, passing a sentence of 16 months, having given a discount for the plea of guilty.

2. The prosecution came to light because a police officer stopped this Appellant in the street because he looked suspicious. It was answers that this Appellant gave to that police officer that led to the police mounting a raid on the premises in question where the discs were being manufactured. That led to the prosecution of two others who also pleaded guilty at the same time as this Appellant. They also received sentences of 16 months in prison.

3. Today, Ms Ku appears for the Appellant and very succinctly says that the considerable help the Appellant gave the police has not been reflected in the sentence because the sentence was the same as the other two who did not provide such help. There is considerable force in that submission and the Legal Aid Department, who instruct her, had written a letter to the police which sets out in writing by their response agreement as to exactly what help was given. I will not read it all out because I can summarise it adequately by saying he revealed the whole operation and it was an operation of which the police were then ignorant. They had not been keeping an eye on the premises and had no suspicions about them.

4. That help, in my judgment, does attract credit and I judge a sentence of 12 months rather than the 16 months is, therefore, the right one in the circumstances. I have not arrived at that length of sentence entirely by mathematics. I judge it to have the right feel to it in a case where the material was not of a grave nature.

5. Accordingly, the appeal against sentence is allowed to the extent that the 16-month terms on Charges 2 and 7 will be reduced to 12 months concurrently to each other. (Submissions by counsel) 6. I will amend what I have just said by saying that the appeal against sentence is allowed to the extent of the 16 months on Charge 2 is reduced to 12 months and that will be concurrent to Charge 7 but consecutive to Charge 5, which was the breach of the suspended sentence for overstaying. So we are all absolutely clear that what has happened today is the 16-month has been altered to 12. Everything else stays in place. (P Line) Deputy High Court Judge Representations: Mr Joseph Wong, Senior Government Counsel of the Department of Justice, for the Respondent Ms Susanna Ku, instructed by Director of Legal Aid for Appellant

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PAGE - CRT22/6.7.2007/DB HCMA263/2007/Judgment

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