HKSAR v. WONG HO FAI

HCMA 174/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 174 OF 2001

(ON APPEAL FROM ESCC 4290/2000)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to one charge of Offering for Sale Infringing Copies of Copyright Works for the Purpose of Trade or Business without the Licence of the Copyright Owner, contrary to section 118(1)(e)(ii) and section 119(1) of the Copyright Ordinance, Cap.258.

2. The infringing articles were 335 music compact discs 727 music video compact discs and 2 video compact discs. The Magistrate sentenced the Appellant by making a Detention Centre Order. It is against that sentence that he now appeals on the ground that the sentence is too severe.

3. The Appellant was aged 23 and the Magistrate called for reports prior to sentencing; a Probation Officer's report, a Community Service Order Report and a Detention Centre report. A Community Service Order, which was work-oriented, was not considered suitable because of the Appellant's minor drug habit, but the officer did recommend an 18-month Probation Order with special conditions relating to his drug problem. The Assessment Officer confirmed that the Appellant was mentally and physically fit for detention in a Detention Centre; he considered him suitable for the Detention Centre's programme and that he would benefit from a period of disciplinary training coupled with after-care supervision.

4. On behalf of the Appellant, it was argued that as he was aged 23 at the time, he was not a person for whom the Magistrate was required to obtain pre-sentencing reports. However, it is quite clear that the Magistrate had the power to obtain such pre-sentencing reports. As the Appellant was under 25, he could be made subject of a Detention Centre Order.

5. It was submitted on behalf of the Appellant that the offence was committed on 21 June 1999, before what counsel termed the leading sentencing authority of Secretary of Justice v. Choi Sai Lok [1999] 4 HKC 334 came into effect on 8 September 1999. It was submitted that the Magistrate ought to have followed the relevant sentencing guidelines that were operative on 25 June 1999. That authority was said to be HKSAR v. Tsui Man Leung MA No.643 of 1998, where, on appeal, a sentence of 6 months imprisonment was considered appropriate for an appellant who was convicted after trial of offering for sale 1,864 pirated CD discs. The appellant in that case was 24 years old. Counsel contrasted this with the case of the present Appellant who was convicted, on his own plea, in respect of 1,064 pirated discs.

6. It appeared that counsel believed that Choi Sai Lok in some way changed the sentencing practices for these offences that pertained prior to 8 September 1999. In fact, all Choi Sai Lok did was gather together the current principles of sentencing for this type of offence and referred to cases where those principles were revealed. The facts of Choi Sai Lok indicated that the quantity of infringing items was very much higher than in the present case. There, the trial judge adopted a starting point of 18 months' imprisonment for one offender and 2 years' imprisonment for the second, and, sentencing on the basis that both were transportation workers, rather than the owners or salesmen of the goods, suspended the sentences.

7. The Secretary for Justice applied for a review of those sentences on the ground that the suspension was wrong in principle. The application was allowed and in setting out its findings the Court referred to past cases where the relevant sentencing principles had been set out. The sentencing principles were simple. Immediate custodial sentences were to be imposed for offences unless the circumstances were truly exceptional, even for first offenders, in order to act as a deterrent to others.

8. It was right to make a distinction between proprietors of retail outlets and warehouses and employees of those persons, but nevertheless it was wrong to distinguish the roles of salesmen and couriers. The roles played by storemen, packers, deliverymen and salesmen might differ but there was little difference in terms of criminal culpability. Differences in sentence would be justified by the number of infringing copies involved, the length of time in which the offender was engaged in the trade, and personal factors such as pleas of guilty.

9. None of those principles was new and that was made clear by the way the Court referred back to earlier cases where those principles had been stated.

10. Accordingly, the relevant sentencing guidelines at the time the Magistrate sentenced this Appellant were in cases that preceded Choi Sai Lok, which merely grouped together principles which had been followed by courts for some time. Choi Sai Lok did not set new sentencing guidelines.

11. Defence counsel submitted that a Detention Centre Order was too severe because in reality it would result in a period of custody of between 6-9 months. This would be unjust because it would result in the Appellant having a longer period in custody than if he had been sentenced to a term of imprisonment. It also meant that no discount had been given to him for his plea of guilty. On that basis the sentence was said to be manifestly excessive and wrong in principle.

12. Section 4 of the Detention Centres Ordinance Cap.239 provides that the detention period in a Detention Centre is to be not less than 3 months and not more than 12 months. If the average sentence was 6-9 months' imprisonment on a plea of guilty, a sentence of Detention Centre order would not be wrong in principle. Section 4 provides that where a person who is apparently a young offender is found guilty of a relevant offence the court may, if it is of the opinion that in the circumstances of the case and having regard to his character and previous conduct, it is in his interest and the public interest that he should undergo a period of detention in a Detention Centre in lieu of imposing any other sentence, make a detention order against him.

13. "Relevant offence" means an offence punishable by imprisonment otherwise for the non-payment of a fine, but not in offence the sentence for which was fixed by law. The offence for which this Appellant was convicted is a relevant offence.

14. The Magistrate having sought reports gave thought to his sentence and, having considered the Detention Centre report, made the order. His approach was not incorrect, nor can it be said that to impose a Detention Centre Order, in these circumstances, is to pass a manifestly excessive sentence, or one that is wrong in principle. For these reasons, I dismiss the appeal.