HKSAR v. MA SAI YUK

HCMA 1316/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1316 OF 2000

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J U D G M E N T

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1. The Appellant in this case had pleaded not guilty but convicted after trial on one count of offering for sale infringing copies of copyright work for the purpose of trade or business without the licence of the copyright owner contrary to s.118(1)(e)(ii) and s.119(1) of the Copyright Ordinance, Cap. 528.

2. The particulars of the offence is that on 29 June 2000 at a hawker stall at the pavement near entrance to the Choi Hung Mass Transit Railway, Clear Water Bay Road, she did without the licence of the Copyright Owner offered for sale 6 video compact discs; 36 music compact discs being infringing copies of copyright works, namely (i) films, (ii) sound recordings, for the purpose of trade or business.

3. The second charge that the Appellant was convicted of, was, wilfully assaulting a member of Customs & Excise Service; in that on that same day at Room 8 Detention Cell No. 1 she had assaulted a member of the Customs & Excise Service who was acting in the execution of her duty.

4. At the trial before the Learned Trial Magistrate, the Appellant was represented by a lawyer from the duty lawyer service. The facts of the case is very briefly this. The first prosecution witness was a Customs Officer. He gave evidence that he observed the Appellant standing behind a stall constructed, as is normally the case, of a hinged wooden horizontal counter or platform mounted on carboard boxes. And he actually saw her taking money from a customer who had selected several discs and she placed the money in the black pouch at her waist. He kept her under observation for one to two minutes and subsequently went up to the Appellant and arrested her.

5. The Appellant was then taken back to the Customs and Excise Office for investigation. It was inside the Customs & Excise Office when the Appellant took out a packet of cigarette and started smoking the cigarette, she was told by the first prosecution witness not to do so and that she should extinguish the cigarette. The Appellant ignored her whereupon the said prosecution witness then approached the Appellant. The Appellant then forcefully thrust out her right hand which was holding the lit cigarette and pushed it against that prosecution witness's right collarbone area, thus causing a burn mark on that area.

6. There was some pushing and struggle and the Appellant was subsequently placed under control. During that struggled, the Appellant also scratched the first prosecution witness's arm. A medical report was produced in the trial which confirmed that there was burn mark on the chest of the Customs Officer and a scratch mark on her arm.

7. The Appellant then gave evidence, she said that prior to her arrest she was standing near a hawker and she was chatting to a friend when she was rushed upon by a group of officers accusing her of selling infringing discs, and she said she denied this and that later on when she was brought back, she said, to the police station but was actually the office of Customs & Excise. She said she was smoking but a female officer then slapped her and it was her reaction from the slap that she accidentally then dropped the cigarette on the Customs & Excise Officer and she said she was then assaulted for several minutes.

8. In her evidence, she also said that she requested for a medical examination, she was refused and was only subsequently brought to the Queen Elizabeth Hospital. A medical report was produced on her behalf which said that she had suffered some bruising on her right forearm and an abrasion on her left wrist and some tenderness in her little finger and there was a linear abrasion on her left thigh.

9. The Appellant's ground of appeal this morning was that she did not commit the offences and the learned trial Magistrate was prejudiced against her because of her lateness in attending court and also she asked the question why, if the first prosecution witness was telling the truth, he did not arrest the buyers of those discs.

10. It is clear from the Statement of Findings of the learned trial Magistrate that he very carefully considered the facts in this case including the evidence giving by the Appellant. Ultimately, he found that he believed the Customs Officer's evidence, which he was entitled to do, after assessing what weight to give to the evidence they gave.

11. The Appellant was represented by a lawyer, Mr Tang, and I could read from the transcript of the proceedings that Mr Tang had made full submissions to the learned Magistrate prior to the conviction. The learned trial Magistrate had everything in mind when he convicted the Appellant. I had gone through the transcript and the statement of findings and I cannot find anywhere, that the learned trial Magistrate had committed an error in fact or in law. He was entitled to come to the conclusions he did. It is only in very rare occasions, on appeal, that the judge on appeal would upset the findings of the learned Magistrate on fact because the learned trial Magistrate had an opportunity to observe the witnesses when they were giving evidence, in order for him to come to the conclusion he did.

12. So I do not find that the Appellant's appeal against conviction has any merit. I therefore dismiss the appeal against the conviction on 1st and 2nd charges.

13. As far as the appeal against sentence is concerned, the learned trial Magistrate after convicting the Appellant, he heard that the Appellant had 58 previous convictions and of the 58 previous convictions, she was convicted 3 times for assaulting a police officer, once for common assault. The Appellant is 45 years old and live alone. He was right in concluding that for offences of this nature, both for the 1st charge and the 2nd charge deterrent sentences are necessary. It has been said time and time again that in relation to the first offence for selling infringing copy, deterrent sentences are necessary in order to stop this trade which is quite prevalent in Hong Kong and which spoils the international reputation of Hong Kong.

14. Having said that, this is the first conviction of the Appellant for selling infringing copy and the value of the goods here, the total value I am told, is only about $2,400.00.

15. I consider therefore that 12 months imprisonment for the 1st charge is manifestly excessive in these circumstances. As was said by the Court of Appeal in the case of The Secretary of Justice v Lam Chi Wah [1999] 4 HKC 343, hawkers and small traders of counterfeit goods, heavy fines, not necessarily linked to the value of the goods, might be imposed in future. And for a repeat offender an immedial custodial sentence might be seriously considered.

16. So I consider that in this case, a heavy fine should be imposed and I consider that $25,000.00 fine. The appeal against sentence on the 1st charge should be allowed and the sentenced should be $25,000.00 fine failing payment of that 2 months imprisonment. But as for the 2nd charge, when the learned Magistrate imposed a sentence of 4 months imprisonment, I do not feel that it manifestly excessive in the circumstances and therefore I dismiss the appeal against sentence on that second charge and that 4 months imprisonment should remain and if the Appellant cannot pay the $25,000 fine, she will go to prison for that 1st charge of two months and for the 2nd charge of 4 months. Two months of the 4 months will be concurrent and two months will be consecutive to the 2 months in the 1st charge..