HKSAR v. LEUNG KA MING

[English Translation – 英譯本]

HCMA 224/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 224 OF 2000

(ON APPEAL FROM NKCC NO. 732 OF 2000)

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JUDGMENT

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1. The Appellant pleaded guilty at the North Kowloon Magistracy to one count of “without the licence of the copyright owner of a copyright work, offering for sale an infringing copy of the work for the purpose of trade or business” (commonly known as “selling pirate goods”), contrary to sections 118(1)(e)(ii) and 119(1) of the Copyright Ordinance, Cap. 528, Laws of Hong Kong. The magistrate sentenced him to imprisonment for 8 months. As he was at that time serving a term of 8 months’ imprisonment in respect of another offence, the magistrate ordered that the two sentences were to run consecutively. The Appellant now appeals against sentence.

2. On the day of the offence, Customs officers armed with a search warrant were conducting an anti-piracy operation along Kweilin Street, Shamshuipo. When they entered a shop at No. 38H Kweilin Street, they found 44 pirate music CDs and 714 pirate movie CDs being stored inside the shop. They also found 379 suspected pirate music CDs and 1,238 suspected pirate movie CDs. Under caution, the Appellant admitted that the shop was run by him and that he was selling pirate CDs without having obtained permission from the copyright owner.

3. In his Reasons for Sentence, the magistrate pointed out that this type of offences regarding infringement of copyright was becoming prevalent and that Shamshuipo and Mongkok had become the “black spots” of these offences. The magistrate said that these offences would seriously tarnish the international reputation of Hong Kong. Applying the Court of Appeal decisions in Choi Wai Man MA No. 669/1998, Pang Chi Wah [1999] HKLRD 9 and Ng Wai Ching MA No. 13090/1996, the magistrate adopted 12 months’ imprisonment as a starting point. The Appellant had three convictions in respect of the same offence and was serving the sentence for those convictions. The magistrate noted from the dates of those offences that the Appellant had committed a second offence when the first offence was not yet over, and therefore took the view that “the previous sentence has failed to exert a deterrent effect on him”. As the Appellant pleaded guilty, the magistrate reduced the term by one-third to 8 months. He then ordered that this term was to run consecutively to the term that the Appellant was serving.

4. The Appellant’s ground of appeal is that the magistrate was wrong in saying “the previous sentence has failed to exert a deterrent effect on him” because he was serving the sentence for the previous offence and the present offence was committed before he began to serve the previous sentence. The Appellant further contends that, when served consecutively, the present sentence and the previous sentence add up to a total of 16 months, and this fails to take into account the totality principle and is therefore manifestly excessive.

5. The records reveal the following details of the Appellant’s previous convictions for similar offences:

(1)     On 13 January 1999, the Appellant committed an offence involving copyright piracy (this would be Case No. NKC 7164/1999). The case involved 7,400 pirate CDs and 8,486 suspected pirate CDs.

(2)     On 16 April 1999, the Appellant committed another offence involving copyright piracy (this would be Case No. SK 2672/1999). The case involved 665 pirate CDs and 2,304 suspected pirate CDs.

(3)     On 27 July 1999, the Appellant committed a third similar offence (this would be Case No. SK 4303/1999). The case involved 420 pirate CDs. The Appellant was prosecuted the following day and trial of that case was adjourned.

(4)     On 8 August 1999, the Appellant committed a fourth similar offence, i.e. the charge in the present case NKC 732/2000.

(5)     On 7 September 1999, in respect of the third offence (i.e. NKC 4303/1999), the Appellant was sentenced to 3 months’ imprisonment but suspended for 2 years. He was also fined $5,000.

(6)     On 24 September 1999 (which was more than 5 months after the offence), the Appellant was prosecuted in respect of the second offence (i.e. SK 2672/1999). On 8 October 1999, he was sentenced to 4 months’ imprisonment.

(7)     On 9 December 1999 (which was almost 11 months after the offence), the Appellant was prosecuted in respect of the first offence (i.e. NKC 7164/1999). On the same day, he was sentenced to 8 months’ imprisonment, but this was allowed to run concurrently with the 4-month term for the second offence.

(8)     On 17 January 2000 (which was more than 6 months after the offence), when the Appellant was in prison serving the said sentence, he was prosecuted in respect of the fourth offence, i.e. the present offence. On 10 February 1999 (sic), he was sentenced to 8 months’ imprisonment, which was to run consecutively to the 8-month term that he was serving, making a total term of 16 months.

6. It can therefore be seen that the Customs officers had been unable to prosecute the Appellant and bring him to the court immediately upon discovering the relevant offences. Save for NKC 4303/1999, the Appellant was not formally charged with the relevant offences until almost 5 or 6 to 11 months after the offences took place. Ms Leung, Counsel for the prosecution, has given two reasons for the delay: first, there had been a particularly large number of such cases in recent years, resulting in a backlog of cases, and coupled with inadequate manpower at the Customs and Excise, the cases could not be dealt with expeditiously; second, which was also the main reason, was that the Customs officers had to contact overseas copyright owners to verify whether they had authorized the sale of the CDs in question. Without such verification, the Appellant could not be charged with selling pirate goods. However, responses from the copyright owners only came through after a long time, and hence the case was unable to proceed speedily.

7. I very well appreciate the difficulty that Customs officer and prosecutors face in handling this type of cases. With the number of cases being on the rise, more time is needed to deal with them. On the other hand, as the cases are not dealt with expeditiously and offenders not punished as soon as possible, offenders are more prepared to try their luck and continue to commit similar offences when Customs officer and prosecutors are dealing with their cases. As a result, these cases proliferate, forming a vicious circle and indirectly encouraging piracy. I would like to appeal to the relevant authorities to strengthen their resources and manpower if they are to eradicate piracy offences. Apart from detecting offences, the authorities should bring the cases to the court as soon as possible so that offenders will not take the opportunity to commit more offences. I would also like to appeal to copyright owners for cooperation because a lack of cooperation on their part will only serve to waste whatever effort Customs officers may make of combating piracy, and this, in the end, will also victimize the copyright owners themselves. I also take this opportunity to reiterate my advice to every person, particularly young people, not to violate the law by selling pirate goods just for the sake of meagre profits. Furthermore, no one should commit offences repeatedly with the expectation or assumption that the sentencing court would apply the totality principle to a second offence committed whilst being “burdened” with an offence and reduce the total sentence accordingly. The court will not condone such a way of committing offences and will in fact regard it as an aggravating factor.

8. In respect of the offence of selling pirate CDs, the Court of Appeal pointed out in Choi Sai-lok CAAR 2/1999 that a starting point of 12 months was correct. The appellant pleaded guilty and hence the term of imprisonment was properly reduced by one-third to 8 months. On the facts of the present case, it appears at first glance that the Appellant was correct in saying that the magistrate should not have said “the previous sentence has failed to exert a deterrent effect on him”, because the Appellant had not yet been sentenced in respect of the three previous cases when he committed the offence in the present case. However, the fact remains that the Appellant repeatedly committed the same type of offence, i.e. he committed the same offence involving piracy on four occasions, in January, April, July and August 1999 respectively. Furthermore, when he committed the present offence, he had already been prosecuted for the third offence and had attended the call-over hearing. This shows that the Appellant not only repeatedly committed the same type of offences, but also made use of the time needed for investigation and prosecution to commit more offences. Had the prosecution taken place within a reasonable time, the Appellant might have been sentenced for the first and second offences, leaving him with no opportunity whatsoever to commit the third and fourth offences. He committed the present offence when he was on bail pending trial of the third offence. In my view, while the sentencing court may consider all the offences as a whole and apply the totality principle, the Appellant’s way of committing the offences should be regarded as an aggravating factor. As far as the present case is concerned, bearing in mind that a single offence will attract a starting point of 12 months and taking into account the four cases as a whole, then, in light of the fact that the Appellant not only committed the same offence repeatedly but also made use of the time needed for investigation and prosecution to commit more offences and committed the present offence while he was on bail pending trial, I will not consider a starting point of 24 months to be manifestly excessive. Giving the one-third discount for the Appellant’s guilty plea, the term is reduced to 16 months. This means that the magistrate’s order that the whole of the present sentence of 8 months’ imprisonment was to run consecutively to the 8-month term that the Appellant was serving, which translates to a total term of 16 months, is not manifestly excessive either. The total term to be served by the Appellant for the four cases should also be in the region of 16 months.

9. For the above reasons, I see no merit in the Appellant’s ground of appeal and dismiss his appeal accordingly.