HKSAR v. TSUI SANG FONG

HCMA 537/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 537 OF 2001

(ON APPEAL FROM SPCC 2418/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant in this case pleaded guilty to offering the sale of infringing copies of copyright works for the purposes of trade and business without the licence of the copyright owner. The total number of infringing copies is 69 music CDs, and 202 VCDs.

2. The fact of the case, to which the Appellant had admitted before the learned Magistrate, was that he was observed on 17 November last year selling these infringing copies and touting them for HK$20.00 each and he had these infringing copies on two wooden folding tables in front of him. He was seen by the Customs Officer, in fact, receiving money from customers for these CDs. Upon his arrest, the Appellant admitted to the Customs Officer that he was the owner of the discs and he had been operating that stall since 7:00 pm on that evening. He was arrested at 8:45 pm.

3. The Appellant is aged 49 and has 17 previous convictions of which 4 were similar. The learned Magistrate after considering the relevant matters, then sentenced the Appellant to a starting point of 16 months reduced to 12 months. The Appellant through counsel appeals against that sentence on the grounds:

(1) that the starting point was too high when one looks at the quantity of infringing copies; and

(2) the second ground is that the learned Magistrate had failed to give the proper one-third discount for his plea of guilty.

4. At the beginning of this appeal, I had indicated to Mr Yim, counsel for the Appellant, that I agree with his 2nd ground and in fact the prosecution Mr Man, very fairly, also conceded that there is no proper reason why the learned Magistrate did not give the Appellant the full one-third discount. So, really basically the argument that Mr Yim concentrated on was on the fact that the starting point adopted by the learned Magistrate was too high and as a side argument, Mr Yim also seems to disagree with the fact that the learned Magistrate had increased the starting point because of the previous convictions of the Appellant in this case.

5. Mr Yim has very helpfully drawn up a chart on cases and relating mainly to the fact that the quantity of infringing copies and the sentences that were imposed by the various courts in the period between 1996 and the year 2000.

6. Whilst I agree that one of the factors to be looked at is the number or the quantity of infringing copies, it is not the only factor to be considered. What is also important is to look at the prevalence of the offence, particularly in relation to the effect it has on Hong Kong's standing in the international community. There is without doubt that in recent years this type of offences have been on the rise. I therefore disagree with Mr Yim's very well-prepared argument that in comparing the sentences given by the courts, one should mainly look at the quantity. It is my opinion that not only the quantity is one of the factors, one has to look at the circumstances of the case.

7. In this case, the Appellant was seemed blatantly selling these infringing copies on the street at his stall and openly touting for customers; and this is even made more serious when one looks at the past record of the Appellant where he has had 4 similar convictions in the past and it shows that the previous sentences he had received had no deterrent effect on him at all as he persisted in committing this type of crime. And that is why the Court of Appeal has refused to lay down guidelines for offences of this nature because one has to look at the specific circumstances of each case in order to arrive at an appropriate sentence.

8. The learned Magistrate in this case took into account the prevalence of this type of offences in his jurisdiction, the reputation of Hong Kong in the international community and the background of the Appellant. He decided that a starting point of 15 months was appropriate in the circumstances of this case.

9. I have found it a little mystifying why the learned Magistrate had referred to the cases of Wong, MA No. 785 of 1998 and Pine MA No.1243 of 1998 when he arrived at the 15 months starting point. But having looked at the circumstances of this case, the quantity of CDs and the prevalence of this type of offences, I do not consider that 15 months was manifestly excessive as a starting point. It is a severe sentence but it does not, in my opinion, go into the manifestly excessive category. The learned Magistrate was correct in taking a higher starting point by increasing the starting point to 16 months because of the record of the Appellant in this case. From that he then reduced the sentence to 12 months because of the plea.

10. As I have said, he was wrong not to have given the full one-third discount in this case and so the appeal is allowed to this extent, I do not find that the 16 months starting point which the learned Magistrate found in the end was manifestly excessive, but I allow the appeal to the extent that he should have given the full one-third discount to the Appellant and I can see no reason for him not to have done so. So, giving the full one-third discount from 16 months would give a sentence of slightly over 10 months, so in these circumstances, I would quash the sentence that was imposed on the Appellant of 12 months and sentence the Appellant to 10 months imprisonment.

11. And as for the previous sentence that the Appellant was serving at the time, the learned Magistrate in this case had ordered that 9 months of the 12 months sentence he had imposed be served consecutive to the sentence that the Appellant was serving. The learned Magistrate was correct in doing that and I will similarly give effect to that decision by making 7 months of the 10 months to be served consecutive to the sentence that the Appellant was serving at the time.