HKSAR v. LIU ROBIN

HCMA 336/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 336 OF 2004

(ON APPEAL FROM NKCC 7317 /2002)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistrates Court to one count of exposing for sale infringing copies of copyright works for the purpose of, or in the course of, any 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. 528.

2. He was initially sentenced to probation for 18 months with special condition. But because of his breach of the probation order, he was then sentenced to a detention centre. He now appeals against sentence.

3. The brief facts were that on the night of the offence the Appellant was selling the VCDs by displaying them at the hawker stall.

4. The Appellant is 22 years old and he has a clear record.

5. The learned Magistrate took a lenient view despite the fact that this type of offences are considered serious. So he called for a probation and community services report, but because of the attitude of the Appellant and his weak self-control his strong resistance to counselling and supervision and his low motivation to change his loose life pattern, there was no doubt that he was more suitable to be under probation than community service. The Detention Centre Report, however, said that the Defendant was found suitable for detention.

6. The learned Magistrate initially gave the Appellant a chance and sentenced him to 18 months probation. But on 26 February which is some 3 months later, the Defendant appeared before the learned Magistrate for a progress report. The report detailed serious and fundamental breaches of the probation order. The Appellant when he appeared before the learned Magistrate was unable to give a good explanation as why he had breached the conditions for the probation. Ultimately the learned Magistrate had no choice but to send the Appellant to detention in a detention centre.

7. The Appellant in his appeal today put forward the only ground that he found it hard to do exercises with his arm because he had hurt his arm previously and it was painful for him to carry out the exercises in the Detention Centre. This is not a valid ground of appeal because the Appellant can actually see a doctor inside the Detention Centre and a doctor can excuse him from driving arm exercises which seems to have been done as the Appellant said the doctor said he found him fit to do foot exercises.

8. So I do not see that this is a valid ground of appeal. I have considered the facts in this case, the Defendant's own behaviour has led him to be detained in the Detention Centre and I see no valid grounds to set aside the Magistrate's sentence.

9. The appeal is dismissed.