R. v. NG WING WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 89 OF 1997

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J U D G M E N T

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1. This is an appeal from Mr James Lee at the Magistrates' Court in Eastern.

2. The facts of the case are very short. There were two young men and a boy, two 16 year old and a 14 year old, who were selling some CDs which infringed copyright and as has been said on a number of times Hong Kong is one of the forerunners in protecting infringement of copyright. The two 16 year old boys pleaded guilty and were dealt with by another magistrate and placed on probation. This 14 year old boy had a minor common assault offence, but the court allowed him to be treated as a person of good character. He pleaded not guilty, but was convicted on December 4, 1996 and the magistrate remanded him in custody. I have no idea why he remanded him in custody. It was quite wrong. If he was calling for reports, I do not see why the appellant was not placed on bail. It was obvious, I would have thought, to anyone that this was a prime case for probation.

3. What then happened was that the appellant was kept inside a detention centre for 15 days. Perhaps this was used as some form of punishment. He then came back to be dealt with and the magistrate said he had to pass an appropriate sentence. I really find it extraordinary that he had to pass a custodial sentence on a 14 year old for this sort of offence. If it were robbery or violence, I might then begin to understand it. The other two co-defendants had received probation, the magistrate apparently thought that because he had pleaded not guilty, then he merited a different punishment.

4. The sentence was clearly wrong in principle and the appellant should never have been placed in a detention centre. The probation report was extremely helpful. The probation service provides a very good service in Hong Kong and I would have thought it abundantly clear that this young man should have had the benefit of the probation service. He comes from a good family with obviously caring parents.

5. What then happened was a chapter of disasters. After the appeal was lodged an application for bail should have been made on his behalf. I am surprised that the Legal Aid Department did not instruct counsel to make an application for bail. The application for legal aid was received on 31 December, but the bundle was not received until January 25. These cases should be dealt with very quickly when people are in custody. Applications for bail should be made or the appeal should be brought on for an early hearing. Eventually, the appeal bundle came and a date was given on 25 February. That, in my judgment, was too long. Then what happened was that the assigned counsel Miss Remedios was not available. Someone from the Legal Aid Department asked this court to refix the date. That again is wrong. Justice is not dependent on the convenience of counsel. What should have been done was that another counsel should have been assigned and the Legal Aid Department was in error in not doing that. What has happened is, as I said, this case then was fixed for March 14. As soon as I read the papers, I realized that something ought to be done quickly, therefore I brought this appeal forward myself. The sentence was wrong in principle and this young boy should have been placed on probation.

6. The appellant has been sent to a detention centre and kept there far longer than he should have been. However, what he did on that day was clearly wrong and he should have known that getting involved with these pirated CDs is treated in Hong Kong as a serious matter. If he had been 18 or 19, a detention centre order may have been merited.

7. Now what I intend to do is to place the appellant on probation for 12 months, subject to certain conditions.