HKSAR v. LEE KONG

HCMA27/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.27 OF 1999

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REASONS FOR DECISION

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1. The Appellant on his own plea was convicted by a Magistrate of the offence of offering for sale infringing copies of copyright works, including, namely, 574 MCDs and 992 VCDs. The Magistrate passed a sentence of three months' imprisonment on him for the offence.

2. The Appellant is about 23 years of age. Before this offence he had a clear record. He used to be working in Spain and had done that for seven years until his return to Hong Kong in November 1997. The offence was committed in May 1998 and at the time when he appeared before the Magistrate to plead guilty to the offence, i.e. December 1998, he was working as an office assistant earning $8,000 a month. The commission of the offence was described by his legal representative to the Magistrate as resulting from the economic turmoil under which he was not able to find any suitable job. As he was offered by his friend to work on a casual basis at the shop where he was arrested, he did so, earning a daily wage of $400.

3. Mr Wong, on behalf of the Appellant, urged upon me that there was a real and effective alternative for imprisonment as the proper sentence for the Appellant. Although the solicitor for the Appellant did ask the Magistrate to consider Community Service Order ("CSO") as an alternative, the Magistrate did not do so.

4. Mr Hui for HKSAR had provided the Court with a list of authorities showing the development of the copyright offence laws as well as the authorities on sentencing in respect of similar offences. These authorities show that both the Legislature and the Judiciary had been viewing offences of this kind as very serious.

5. In the Copyright Ordinance enacted in 1973, a similar offence was punishable by a fine of $500 for each infringing copy. By an amendment in 1975, the fine was increased to $1,000 plus imprisonment for 12 months. In 1995, the law was amended again to increase the fine to $25,000 and the imprisonment term to two years. That was the Copyright Ordinance, Cap.39. In 1997, that Ordinance was repealed and replaced with the Copyright Ordinance, Cap.528 and the levels of fine and imprisonment were increased to $50,000 and four years respectively. The Judiciary had, at least since 1996, imposed custodial sentence on offenders of this nature. In almost all of these cases, the Courts dealing with similar kind of offence were of the view that a deterrent sentence must be passed in order to stamp out this illegal activity and invariably, immedial custodial sentences were passed. One of the purposes as stated in the decisions was to protect Hong Kong's reputation as a fair international trade centre. It appears to me that the sentences passed by the Courts had been more severe as offences of this nature had become more prevalent. I have no doubt that that is the proper approach and I may say that I am bound by some of the authorities because they were decisions of the Court of Appeal. It is just proper that immediate custodial sentence be passed as a deterrent for the offence which has become prevalent and the message from these Courts is that such an offence will be dealt with severely. With that, I totally agree.

6. However, Mr Wong on behalf of the Appellant pointed out to me that CSO was a very real and effective alternative to imprisonment. He directed my attention to Chapter 8 of Cross & Cheung, Sentencing in Hong Kong and it is said at pp.39 and 40 that :-

"A Court shall not pass a community service order on an offender unless it concludes that the offence is serious enough to warrant such a sentence."

It also states :-

"Such a sentence is punitive to the extent that imposes restrictions on the accused and curtails his free time."

The case of R v. Brown [1981] 3 Crim App R 294 was cited by the editors to provide guidance as to which accused can be said to be best suited to the CSO :

1. the accused be either a first offender or one with a light criminal record;

2. he comes from a suitable home background perhaps with a family;

3. he had a good work record, orders are not designed to encourage the lazy or to show the idle the errors of their ways;

4. he is in employment or has a realistic prospect of such;

5. he had shown genuine remorse; or

6. he presents no more than a slight risk of re-offending.

7. It appears to me that the situation of the Appellant here fits in well with these six conditions. What makes his position exceptional from the cases cited by Mr Hui to me regarding immediate custodial sentence is that he had been working in Spain for seven years before his return to Hong Kong in November 1997, and he started to be involved in the illegal selling of infringing copies in April 1998. Because of his clear record and his immediate plea of guilty showing his remorse, I am prepared to give him the benefit of the doubt that he was not familiar with the situation in Hong Kong when and shortly after he returned from Spain. I am prepared to accept that he might not be able to understand that the offence with which he was convicted was seen to be very serious by both the Legislature and the Judiciary of Hong Kong and by the public for that matter.

8. Bearing in mind the exceptional nature of this case, I would be prepared to seek a Community Service Report on the Appellant to see if that alternative is open. I have been reminded by Counsel for both parties before me that I should not give a wrong message by adopting this approach, and I hereby do so to say that selling or offering for sale or any dealing with infringing copies of copyright is treated very seriously by the Courts. In all cases, the person getting involved with this kind of offence is best advised to expect an immediate custodial sentence. The trend is clear from the decisions of the Courts that the length of the imprisonment sentence is also on the increase.

9. In view of my decision, I would extend the bail of the Appellant on similar terms until the return of the Community Service Report, and in fact until the resumption of the hearing of this appeal. I order a Community Service Report on the Appellant to be submitted to the Court by 5 May 1999.