HKSAR v. CHENG MING YUK

HCMA410/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.410 OF 2000

(ON APPEAL FROM ESCC NO.592 OF 1999)

-------------------------

----------------------

J U D G M E N T

----------------------

1. The appellant was convicted on 5 April 2000 of one charge of selling or letting for hire infringing copies of copyright work for the purpose of trade or business without the licence of the copyright owner and a second charge of possession for the purpose of trade or business of infringing copies of copyright with a view to committing any act infringing the copyright without the licence of the copyright owner.

2. The appellant was arrested on 11 February 1999 when she was found to be a shop assistant at premises in Wanchai where customers could come and, having inspected a catalogue, order infringing copyright material which was then collected from another shop. The appellant was 20 years of age, not the owner of the business nor of any of the infringing works. She was sentenced to Training Centre and she now appeals that sentence.

3. The magistrate in his Reasons for Sentence said that :

"The defendant had played an active part in a relatively sophisticated operation which was not a small business. This type of offence is, and was at the time of the defendant's offences, extremely prevalent. The shopping centre where the defendant had committed the offences is a notorious location for the sale of infringing copy goods. It has been mentioned in many cases which have come before this Court in the recent past.

For many years the Courts have been imposing immediate custodial sentences for this type of offence given its prevalence even in the case of first offenders such as this defendant."

The magistrate called for Training Centre and Probation Reports.

4. Given the period of time which had elapsed from the commission of the offence until the plea of guilty by the appellant, a picture as to the rehabilitation of the appellant, in that period, emerged. She had, during that period, obtained gainful and legitimate employment and had, on the evaluation of the assessors in respect of both reports, retreated from illegal business and had become a reformed person. Both Training Centre and Probation was recommended. The magistrate in his Reasons said this :

"I considered carefully the sentencing reports which generally painted a favourable picture of the defendant. She was considered suitable for probation supervision and was also suitable for detention in a Training Centre. I was of the opinion that probation supervision would not be sufficient deterrent given the prevalent nature of the offence and the sentencing guidelines given in recent times by the High Court. I felt that the defendant would benefit from a period of discipline retraining together with after [care] supervision and I made [an] order that the defendant be detained in a Training Centre."

The magistrate seems to have dismissed the option of probation on the basis that to do so would be to pass a sentence which others would consider not a deterrent or alternatively, would not deter the appellant.

5. The co-accused of this appellant was the man who was in charge of the business and who was convicted on three charges on the basis that he said that he did not know that the copyright was infringing. He was sentenced to a total of six months' imprisonment. The co-worker of the appellant was sentenced to 120 hours community service.

6. At the present time, the appellant has served 85 days in custody which, taking into consideration the normal one-third discount for good behaviour, would mean that in total term she has served the equivalent of a 41/2 months' sentence.

7. I accept the magistrate's view that in cases such as these, even a first offender can expect a term of imprisonment, and I adopt which was said by the courts in earlier cases indicating that that is a proper approach. However, given the rehabilitation of this appellant during the year she was on bail and the proof of that in the reports, and given the sentence passed upon her co-accused, and given that she is a first offender, she is young and notwithstanding her knowledge of the nature of the business in which she was engaged, it seems to me that the term of custody which she has already served is an appropriate clang of the prison gates.

8. This appeal is allowed to such an extent as will effect her immediate release. I do not propose, in the circumstances, to impose a probation order.