HKSAR v. LI TSZ LOK AND OTHERS

DCCC 1063/ 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1063 OF 2008

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Reasons for Sentence
In respect of D4, D5 and D11

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The pleas

The 18^th charge

1.  D4, D5 and D11 plead guilty to this charge of conspiracy to sell, offer or expose for sale pirated discs, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and sections 118(1)(d) and 119(1) of the Copyright Ordinance, Cap. 528.   

The 12^th ,13^th and 11^th charges

2.  D4, D5, and D11 also plead guilty to their individual charges, namely the 12^th, 13^th, and 11^th charges, contrary to section 41 of the Immigration Ordinance, Cap. 115 and by virtue of Regulation 2 of the Immigration Regulations.

The application for enhancement of sentence

3.  The prosecution seek to have the sentence enhanced pursuant to section 27 of the Organized and Serious Crimes Ordinance, Cap. 455, on the 18^th charge on the basis “that the offence was an organized crime in that it is related to the activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts, name conspiracy to sell, offer or expose for sale infringing copies of a copyright work for the purpose of or in the course of any trade or business without the licence of the copyright owner of the work, which is a Specified Offence and involved substantial planning and organization. 

4.  The defence resist the application. 

The facts of the 18^th charge

5.  The Particulars of the Charge refers to the period between 3 July 2007 and 23 June 2008.  D4, D5, and D11 were said to have conspired with others to sell, offer or expose for sale pirated optical discs.  However, the facts relating to D4 and D5 only revealed the illegal activities D4 and D5 were engaged in from 19 to 22 June 2008. In the same token, the facts relating to D11 only revealed the illegal activities D11 was engaged in from 24 February to 23 June 2008.

D4 and D5’s illegal activities

On 19 June 2008

6.  At around 2040 h, CO 9898 conducted a test buy at Shop 143, Upper Ground Floor, 298 Computer Zone, Kwong Sang Hong Building (Block A), No. 298 Hennessy Road, Hong Kong (“Outlet”).  He paid marked money to a salesman.  The salesman gave him a receipt and told him to come back for the discs at 2100 h.  At 2100 h, CO 9898 returned to the Outlet and handed the receipt to D5.  D5 handed 4 discs (3 of which were confirmed to be pirated discs) to him.  Altogether there were 2 people involved: (1) the salesman; (2) D4.   

On 20 June 2008

7.  At around 1800 h, CO 98385 conducted a test buy at the Outlet.  He paid marked money to D1.  D1 jotted down the disc codes on paper and passed the paper to D4 together with the money.  D4 returned the change to CO 98385 together with a receipt.  Later, CO 98385 returned to the Outlet and handed the receipt to D5.  D5 handed 10 discs (all of which were confirmed to be pirated discs) to him.  There were 2 people involved: (1) D1; (2) D5.

8.  At 1810 h, CO 0739 conducted a test buy at the Outlet.  He paid marked money to D4.  D3 jotted down the disc codes on paper and passed the paper to an unknown male who passed it together with the money to D4.  D4 returned the change.   Later, D5 handed 11 discs (all of which were confirmed to be pirated discs) to him.   There were 4 people involved: (1) D4; (2) D3; (3) the unknown male; (4) D5.    

On 21 June 2008

9.  At 1815 h, CO 98126 conducted a test buy with marked money.  He got 4 discs (3 of which were confirmed to be pirated discs). There were 2 people involved: (1) D4; (2) D5.    

10.  At 1509 h, CO 97230 conducted a test buy with marked money.  He got 6 discs (1 of which was confirmed to be a pirated disc). There were 2 people involved: (1) D4; (2) D5.    

11.  At 1640 h, CO 0739 conducted a test buy with marked money.  He got 7 discs (1 of which was confirmed to be a pirated disc). There were 2 people involved: (1) D4; (2) D5.    

12.  At 1645 h, CO 99151 conducted a test buy with marked money.  He got 5 discs (1 of which was confirmed to be a pirated disc). There were 2 people involved: (1) D4; (2) D5.    

13.  At 1750 h, CO 98126 conducted a test buy with marked money.  He got 10 discs (6 of which were confirmed to be pirated discs). There were 2 people involved: (1) D4; (2) D5.    

On 23 June 2008

14.  At 1703 h, CO 98126 conducted a test buy with marked money.  He got 9 discs (7 of which were confirmed to be pirated discs). There was 1 person involved: D4.    

15.  At 1751 h, CO 98149 conducted a test buy with marked money.  He got 61 discs (52 of which were confirmed to be pirated discs). There was 1 person involved: D4.    

16.  At 1915 h, CO 9898 conducted a test buy with marked money.  He got 3 discs (1 of which was confirmed to be a pirated disc). There were 2 people involved: (1) D4; (2) D5.    

The arrest of D4 and D5

17.  At 2130 h on 23 June 2008, D4 was arrested at the rear alley between C.C. Wu Building and Kwong Sang Hong Building (Block D).  Under caution he said he had just worked there for 5 days at $300 per day.  At 2300 h, D5 was arrested.  Under caution he said he just worked for the first time. 

D11’sillegal activities

On 28 May 2008

18.  D11 took a black plastic bag from her handbag and gave it to an unknown man at No. 2 Staircase, 298 Computer Zone.  The unknown man later delivered the bag to the Outlet.  The bag contained smaller yellow plastic bags, each of which contained inlaid cards and discs.  Some of the discs were pirated discs. 

Between 21 and 23 June 2008

19.  D11 and other unknown persons went to two buildings in Wan Chai to collect plastic bags containing suspected pirated discs for delivery to the Outlet.  The prosecution say that these two locations had no significance in our present proceedings.  

On 23 June 2008

20.  D11 emerged from 2/F, No. 40 Cross Street, Wan Chai.  Later D11 handed a black plastic bag to D5 at 298 Computer Zone.  After collecting the black plastic bag from D11, D5 went back to the entrance to the Outlet where he distributed smaller yellow plastic bags to customers.  The yellow plastic bags were later found to contain inlaid cards and pirated discs. 

The arrest of D11

21.  At 2330 h, D11 was arrested by CO 97230 at Nos. 72 – 72A Stone Nullah Lane, Wan Chai, Hong Kong.  He was then escorted to 2/F, No. 17 Hing Wan Street, Wan Chai, Hong Kong for house search, where 2 notebooks were seized as exhibits.    The prosecution say that the latter location and the notebooks had no significance in our present proceedings.  

The facts of the 12^th ,13^th , and 11^th charges

22.  The Immigration Department confirmed that D4, D5, and D11 were allowed to stay in Hong Kong as visitors for 14 days.  During their stay they could not take up any employment, whether paid or unpaid, and they could not establish or join any business without the permission of the Director of Immigration.  At the material time, they did not have such permission. 

D4’s personal circumstances

23.  D4 is now 30 years of age.  She has a clear record.  She is a Mainland resident. 

D5’s personal circumstances

24.  D5 is now 21 years of age.  He has a clear record.  He is a Mainland resident. 

D11’s  personal circumstances

25.  D11 is now 24 years of age.  She has a clear record.  She is a Mainland resident. 

The principles of sentence

Sentence for selling, offering or exposing for sale pirated discs

26.  The leading case is Secretary for Justice v Choi Sai Lok [1999] 4 HKC 334.  It was an application by the prosecution for review of sentence.  In one charge, the 1^st Respondent pleaded guilty to possessing, as a courier, 719 pirated discs.  The 2^nd Respondent pleaded guilty to two charges.  One charge was that he was in possession, as a courier, of a total of 644 pirated discs.  The other charge was that he was in possession of the keys to a storage centre where a total of 22,963 pirated discs and various paraphernalia for labeling, pricing and packing were found.  Keith JA said, at 340:

We have no doubt that a distinction should be drawn between the proprietors of retail outlets and warehouses who commit these offences, and the persons employed by them.  The former should receive longer sentences than the latter.  But where we disagree with the judge is in the distinction which he drew between salesmen on the one hand and couriers on the other.  The roles played by storemen, packers, delivery men and salesmen may be different, but we do not see much difference between them in terms of criminal culpability.  What will justify differences in sentences between them will be, for example, the number of infringing copies involved, the length of time in which they had been engaged in the trade and factors personal to them such as pleas of guilty. 

27.  There were no tariff sentences but Keith JA regarded that the correct starting point in the case of the 1^st Respondent would have been 12 months' imprisonment and in the case of the 2^nd Respondent would have been 18 months' imprisonment.

Saving of prosecution’s preparation time

28.  In Choi Sai Lok (supra), Keith JA regarded as a mitigating factor an early indication of a plea of guilty.  He said, at 342:

The preparation of a case of this kind for trial involves considerable efforts in locating the copyright owners of the infringing copies, and obtaining confirmation from them that they are indeed the copyright owners and that the copies seized were not produced under licence.  That caused Mortimer JA in [R v ] Li Wan Kei [CA 13/1997] to say:

It may be that … if there is a full indication of an intention to plead guilty at the very outset which avoids all the elaborate preparation and expense for trial, this also will be reflected in the sentence passed.

We agree with that observation.

Sentence for breach of condition of stay

29.  It is customary for the Court to impose 2 months’ imprisonment upon a plea of guilty.  Examples abound.  One that is often cited is HKSAR v Xie Chun Mei [2004] 1 HKLRD 865 where a two-way permit holder taking up prostitution was sentenced to 2 months’ imprisonment.  In HKSAR v Zhang Minghua MA 547/2006, the 2 months given in Xie Chun Mei (supra) was said to be applicable to a two-way permit holder who worked in a restaurant in Hong Kong.  He was, however, sentenced to 6 weeks’ imprisonment.  Deputy Judge M. Poon made the passing remark, at para. 8, that it was “unduly lenient”. 

Ruling on the application for enhancement of sentence

30.  As enhancement of sentence is a draconian measure, the prosecution must prove that the crime involved, among others, “substantial planning and organization”.  Whilst a conspiracy for D4 and D5 to work as salespersons with other people at the Outlet, and D11 to work as a courier with other people, no doubt involved some degree of planning and organization, the evidence does not show any “substantial” planning and organization.  Nor does it show anything “substantial” in the system the Outlet was run, the way the delivery was made, the quantity of discs or the volume of sales.  I find no basis for enhancing of sentence. 

The sentence I pass

31.  As regards the 18^th charge, I take a starting point of 12 months’ imprisonment for D4, D5, and D11 alike.   

32.  I give a one-third discount for their pleas of guilty and clear record.  I give a further month’s discount for their early indication of a plea of guilty, hence a saving in substantial preparation to prove copyright.  This will bring the sentence down to 7 months.  There are no other mitigating factors.   The sentence is 7 months’ imprisonment for each of D4, D5, and D11 alike.           

33.  As regards the respective charges for breach of condition of stay, I take a starting point of 3 months’ imprisonment.  I give a one-third discount for their plea of guilty.  The sentence is 2 months.  

34.  As to the issue of whether the sentences should be concurrent or consecutive, the observations in Xie Chun-mei (supra) are applicable though the facts of our present case rest on the other side of the coin.  In Xie Chun-mei (supra), the two-way permit holders committed other offences outside the scope of their prostitution job.   D4, D5, and D11 were in breach of the condition of stay by working under the conspiracy.  The work itself was, no more and no less, the copyright offence under the conspiracy.  The offences ought to call for concurrent sentences.  Hence I order that each of D4, D5, and D11 will serve a fully concurrent sentence for their charges.