CHAN HON SHING v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

( APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 997 OF 1987

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J U D G M E N T

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1. The Appellant pleaded guilty to three charges. Charges A and D related to offences under section 5(1) and 5(2) of the Copyright Ordinance and Charge B related to an offence under section 4(1)(b) of the Objectionable Publication Ordinance. He was sentenced to three months on Charge A, to a consecutive period of six months on Charge D and to a fine of $3,000 on Charge B. He now appeals against the sentences imposed on Charges A and D.

2. Briefly, the facts of the case were that on the 5th March, 1987 Customs officers searched a video shop known as Jazz Video on ground floor of 185B Nam Cheong Street, Kowloon and seized 111 video cassette tapes being infringing copies of cinematograph films in which copyright subsisted and 11 obsence video cassette tapes. The Appellant, who was inside the shop at that time and who admitted to being the proprietor of the shop, was arrested. His place of residence was also searched resulting in a seizure of 6 video cassette recorders, 1 television and 1 video/audio distributor being plates used for making infringing copies of cinematograph films in which copyright subsisted.

3. Mr Cheng urges that this was.not an appropriate case which warranted an immediate custodial sentence and referred the Court to a List of Statistics of Sentences supplied by the Customs & Excises Department passed for similar offences in 1987 which showed that in not a single case was a custodial sentence imposed. The list sets out the fines that were imposed on first offenders. Mr. Cheng advanced some mitigating factors which were not put before the learned magistrate, namely, that the Appellant had set up his business in October, 1986 some 4 to 5 months prior to his shop being searched. He was self-employed earning a monthly salary of $3,000 and he paid a monthly rental of $3,500 for his shop which occupied a space of 60 square feet. He had ceased his business and now works in his father's shop earning $3,000 per month and is about to get married. He has been kept in custody for one week.

4. In CHAN Yiu-wai and The Queen, Criminal Appeal No. 772 of 1976, Leonard J. said :

"The Legislature has made it abundantly clear by an amendment to the Copyright Ordinance passed in October 1975 that offences under that Ordinance are not to be taken lightly. Before October 1975 a custodial sentence could not be imposed on a first offender. That is no longer so and this change on the part of the Legislature and the setting up of a special unit to combat such offences alike show that in the minds of both of the Legislature and the administration deterrent sentences and in appropriate cases immediate custodial sentences are desirable. It is clearly my duty and the duty of magistrates to obey unhesitatingly the dictates of the Legislature and to have due respect for the views of the administration in such matters."

5. In HO Jimmy and The Queen, Criminal Appeal No. 1191 of 1976, Sir Geoffrey Briggs, C.J. dismissed the appeal against an immediate custodial sentence of twelve months imposed on a first offender for offences under the Copyright Ordinance.

6. Mr Hartmann, Counsel for the Crown, contended that in appropriate cases an immediate custodial sentence ought to be imposed on a first offender for offences under that Ordinance. But he very properly pointed out that in the past ten years no immediate custodial sentence had been imposed on first offenders for offences under that Ordinance, and in his view, it would be unfair to the Appellant to receive an immediate custodial sentence.

7. The Legislature by its amendment in 1975 obviously intended that offences of the present kind are to be regarded as serious. Hong Kong is an international centre for trade and copyright infringements are not likely to enhance the territory's reputation. I can well envisage cases, and certainly repeat offenders, where it would be proper to impose an immediate custodial sentence.

8. I reluctantly allow the appeal which is not to be taken as a precedent. The sentences in respect of Charges A and D are set aside and I substitute a fine of $10,000 and $4,000 respectively.