HKSAR v. WU CHUNG YIN

HCMA846/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.846 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on his own plea by a magistrate of two offences, one being possession for the purpose of trade or business of infringing copies of copyright works with a view of committing any act infringing the copyright without licence of the copyright owner, the other being possession for sale of goods to which a forged trade mark was applied. He was sentenced to six months on each count concurrently.

2. He now appeals against sentence on two grounds, namely, that the starting point taken by the Magistrate of nine months was, in all the circumstances of the case, excessive, and secondly that the Magistrate wrongly failed to take into account adequately, or at all, the relatively low number of discs and the clear record of the Appellant. A further ground of appeal relating to the location of the premises was abandoned.

3. I note that the maximum sentence, on summary conviction, for the infringing copies offence is two years' imprisonment and a fine of $100,000. I have been referred to three cases, namely R v. Wong Kam-ming, Mag. Cr. App. No.95/1990, R v. Chiu Yat-hung, Mag. App. No.208/1996, and R v. Li Wan-kei and Anr., Cr. App. No.13/1997. All these cases give greater or lesser degrees of assistance.

4. I think, however, the first point that one has to look at is the necessity for deterrence which is set out by the Court of Appeal in the case of Li Wan-kei. At the same time, one has to take into account the quantity of infringing copies or goods seized. In this case, the Magistrate has clearly taken into account both the necessity for deterrence, which he said is a central consideration, and the quantity of infringing copies.

5. I note that according to the statement of facts in this case, the infringing copies were given a value of a total of HK$19,050 and there were something in excess of 600 discs involved. This is a rather smaller amount than that which was involved in the case of Li Wan-kei, but nevertheless, it is not a totally negligible amount and the Magistrate noted that the number of discs showed that a goodly proportion of the stock was infringing copies or had forged trade marks applied. The Defendant was not a minor player but was in fact the proprietor of the shop.

6. In all the circumstances, I do not consider that the Magistrate was wrong in applying a starting point of nine months to the case. I do not consider the Magistrate failed to take into account the relatively low number of discs which he clearly did. As to the clear record of the Appellant, this was also taken into account, since the Magistrate, no doubt because of this, obtained a report before imposing the sentence.

7. It is not for me simply to impose a sentence, which I may feel, would be more appropriate. My function here is to decide whether in fact the Magistrate erred. I cannot see that he did err and accordingly I have to dismiss this appeal.