刑事檢控科各律師/高級律 - Department of Justice

39
E. MAGISTRACY APPEALS/
AGAINST SENTENCE
裁 判 法 院 上 訴 案 件 / 針 對 刑 罰
MA 110/2004
Beeson J
(21.5.2004)
*Leung Sun-yee
#Joseph Tse
NGAI
Wing-keung
Possession of obscene articles for publication/Imprisonment
and fine imposed/Imprisonment in default of payment of fine/
Enquiry as to source of bail money different from enquiry as
to means to pay fine/Inquiries as to capacity essential/
Defendant wrongly punished for refusing to use bail money to
pay fine
管 有 淫 褻 物 品 以 供 發 布 之 用 – 處 以 監 禁 及 罰 款 – 因
欠 繳 罰 款 而 判 處 監 禁 – 對 保 釋 金 來 源 的 查 問 與 對
支 付 罰 款 的 經 濟 能 力 的 查 問 不 同 – 查 問 支 付 罰 款
的 能 力 屬 必 須 – 被 告 人 因 拒 絕 以 保 釋 金 支 付 罰 款
而 遭 錯 誤 處 罰
The Appellant pleaded guilty to an offence of possession of
obscene articles for the purpose of publication, contrary to
s 21(1)(b) of the Control of Obscene and Indecent Articles
Ordinance, Cap 390. He was sentenced to 10 months’
imprisonment, and fined $20,000, and ordered to serve 3 months’
imprisonment, consecutive, in default of payment of the fine.
In his Reasons for Sentence, the magistrate noted that the
Appellant has been in possession of 4,267 obscene discs, at what
was described as a ‘notorious location’ for this type of offence.
The Appellant, aged 51, had 31 previous convictions, including 4
for similar offences, and was in breach of a suspended sentence
imposed four months earlier for a similar offence. The magistrate
considered a higher starting point for sentence was appropriate
because of the Appellant’s disregard for the law and took 15
months as the starting point. He then stated:
I was also satisfied that an additional penalty should
be imposed. I heard evidence regarding the
defendant’s ability to pay a fine and was satisfied
beyond reasonable doubt that the bail money was
available to the defendant to dispose of.
The magistrate noted that the Appellant had been convicted
repeatedly in the past three years. In September 2003, he had been
fined a total of $5,000, and given a sentence of 6 months
suspended for 12 months for two similar offences. He considered
imprisonment was appropriate, and that on this occasion a larger
fine was also appropriate.