HKSAR v. ULAMBAYAR ANKHBAYAR

HCMA 703/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 703 OF 2010

(ON APPEAL FROM ESCC 3354/2010)

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J U D G M E N T

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1.  The appellant had pleaded guilty to one charge of possessing an infringing copy for sale, namely 52 digital video discs, being infringing copies of films and one charge of breach of condition of stay, he was sentenced to a total of 4 months’ imprisonment. He now appeals against that sentence.

2.  The facts admitted show that at about 9 am on 8^th August, the appellant was carrying a bag and touting the infringing copies to passers-by at Battery Path in Central.  The appellant was arrested and cautioned.  Under caution, the appellant admitted he was selling the infringing copies and he was remorseful.

3.  The total number of discs found was 52 and the value was $1,300.  In mitigation, it was said, on behalf of the appellant, that he was aged 22, and he is a second-year mathematics student in a Mongolian university, and had to resume his study on 1 September 2010.  It was claimed on his behalf in mitigation that he came to Hong Kong for sightseeing, and because he lost his belongings, he then was tempted to commit this offence by a Pakistani male, and that he was only a salesman.

4.  The learned Magistrate considered the background of the appellant and also considered the case of the Secretary for Justice v Choi Sai Lok and Another [1999] Vol. 4, HKC, page 334, where the Court of Appeal had said that for offences relating to charge 1 that an immediate custodial sentence is necessary unless there are exceptional circumstances.  There are no exceptional circumstances here. The learned Magistrate then adopted a starting point of 6 months’ imprisonment and reduced it by one-third because of the appellant’s plea, and so sentenced the appellant to 4 months’ imprisonment on charge 1, and for the breach of condition of stay, he was sentenced to 2 months’ imprisonment.

5.  The learned Magistrate had noted that she could have ordered the sentences to run consecutively thus making a total of 6 months’ imprisonment, but she, in the end, gave the benefit to the appellant and ordered that the sentences be served concurrently. The learned Magistrate did consider the fact that the appellant is a foreigner, but that is not a reason to give a discount because the appellant came to Hong Kong and committed the offence.

6.  On appeal, the appellant said that he regrets what he has done and he has learnt his lesson.  He is the sole breadwinner of his family which consists of his grandmother, his daughter aged 3 years and a younger brother, and that they have a nomadic way of life and so during his time in custody, he has not been able to communicate with his family.  Although he has a little over 20 more days to serve, he still considers this too long.  He asks the court to grant him an early release so he can return to university to complete his education.

7.  As I have said, the sentences that the learned Magistrate have imposed are not heavy.  In fact, they are on the light side. The learned Magistrate had taken into account everything that she has to take into account on behalf of the appellant.  So, in the circumstances, 4 months’ imprisonment is not considered in any way excessive.

8.  There are no humanitarian or exceptional circumstances in this case, the appellant knew his family’s condition when he came to Hong Kong, and knew that he had to go back to study in September before he committed the offences.

9.  I cannot, in any way, interfere with the learned Magistrate’s sentence.  So the appeal is dismissed.