Sentencing – Publishing obscene article – Defendant sentenced on basis of vicarious liability for acts of others – Parity of sentencing between persons prosecuted for publication of same article – Control of Obscene and Indecent Articles Ordinance (Cap 390) s 21(1)

SECRETARY FOR JUSTICE V MONG HON MING (蒙漢明) [2009] 3 HKC 481

Court of Appeal
Application for Review No 1 of 2009
Stuart-Moore Ag CJHC, Hartmann JA and Wright J
15 April, 5 May 2009

Kevin Zervos SC, DDPP and Agnes Chan, SPP (Department of Justice) for the applicant.
Lawrence Lok SC and Money Lo (Tso Au Yim & Yeung) for the respondent.

The respondent was the editor-inchief of Eastweek Magazine. In 2002, the magazine published an article containing a photograph of a wellknown actress showing her naked from the waist upwards in a distressed state. This photograph was displayed on the front cover of the ‘entertainment’ section of the magazine. The article described the photograph as having been taken while she was in the hands of criminals many years earlier. The respondent pleaded guilty to a charge of publishing an indecent article and was sentenced to six months’ imprisonment, suspended for two years. In mitigation, the respondent’s counsel had explained that the reason why the respondent had not pleaded guilty earlier was because he thought he had a defence in view of his absence from Hong Kong at the material time. This later turned out to be untrue. The Secretary for Justice applied for review of the sentence.

Held, allowing the application and imposing an immediate custodial sentence of 5 months’ imprisonment:
The present case represented a grave offence of its kind. There was no honest purpose in printing the article. The sole purpose was purely financial. The respondent’s remorse was extremely shallow, having pleaded guilty six years after all legal manoeuvres had been exhausted. Even after pleading guilty, he still tried to avoid any moral blame by falsifying his whereabouts at the material time.

The incorrect version of the respondent ’s whereabouts at the material time was not an error caused by inadvertence on the respondent’s part. No correction was made at the time, nor  on the day the sentence was imposed when asked if there was anything to add. Because of this incorrect fact, the magistrate viewed this as a matter of ‘vicarious liability’, which was different from having a heavy personal responsibility for the publication of the article. Had such a basis existed, the magistrate would have been justified in suspending the sentence, but he had been seriously misled by the mitigation.