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[English Translation - 英譯本]
CACC 290/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 290 OF 2008
(ON APPEAL FROM DCCC NO. 617 OF 2008)
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BETWEEN
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HKSAR |
Respondent |
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and |
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HUA GUIHONG |
Appellant
(1st Defendant) |
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GAN AIRONG |
Applicant
(2nd Defendant) |
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Before: Hon Tang VP, Cheung JA and Yuen JA in Court
Date of Hearing: 20 March 2009
Date of Judgment: 20 March 2009
Date of Reasons for Judgment: 2 April 2009
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REASONS FOR JUDGMENT
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Hon Cheung JA (giving the judgment of the Court):
The three charges
1. On 19 August 2008, the two defendants pleaded guilty before District Judge Stanley Chan (hereinafter “Judge Chan”) to the following three charges:
Charge 1
Without the licence of the copyright owners of copyright works, possessing infringing copies of such works with a view to their being sold or let for hire by any person for the purpose of or in the course of any trade or business, contrary to sections 118(1)(f)(i) and 119(1) of the Copyright Ordinance (Cap. 528 of the Laws of Hong Kong).
Charge 2
Having in possession an article knowing that it was used to make infringing copies of copyright works for use for the purpose of or in the course of any trade or business, contrary to sections 118(8) and 119(2) of the Copyright Ordinance (Cap. 528 of the Laws of Hong Kong).
Charge 3
Breaching a condition of stay, contrary to section 41 of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong) and regulation 2 of the Immigration Regulations (Cap. 115A of the Laws of Hong Kong).
The sentences
2. For Charge 1, Judge Chan adopted 27 months’ imprisonment as a starting point and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 18 months. For Charge 2, Judge Chan adopted a starting point of 30 months’ imprisonment and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 20 months. As regards the charge of breaching a condition of stay, Judge Chan adopted a starting point of 6 months’ imprisonment and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 4 months. Judge Chan ordered that the sentences for Charges 1 and 2 were to run concurrently, and the sentence for the charge of breaching a condition of stay was to run consecutively to the sentences on Charges 1 and 2, making a total sentence of 24 months’ imprisonment for each defendant.
The facts
3. The two defendants are both Mainland residents. They entered Hong Kong as visitors on 7 April 2008. Their entry was subject to the condition that they were not allowed to work in Hong Kong.
4. On 8 April 2008, customs officers stopped and searched the two defendants as they emerged from the ground floor premises (“the premises”) of a building in Tai Po Tin Village, Ta Kwu Ling, carrying a carton. Customs officers found 777 pirated discs in the carton and later found from the premises 14,659 pirated discs, 22 sets of disc-replication machines, 12,010 blank digital discs and 4,940 blank discs.
5. At least 15 of the aforesaid 22 sets of disc-replication machines were in good working order. Most of the machines were equipped with 5 disc burners, and 2 of them were even equipped with 10 burners. The pirated discs comprised VCDs, TV game discs, DVDs, computer software and computer game discs.
6. The two defendants claimed that upon their arrival in Hong Kong, they were taken by a man, whose name was unknown, to the premises, where they burnt and packed pirated discs, earning a daily wage of HK$250. Upon receiving instructions over the phone, they would deliver the pirated discs to another person.
The 1st defendant
7. The 1st defendant was granted leave by a single judge of the Court of Appeal to appeal against sentence. The two copyright offences that she has committed are “possessing infringing copies of copyright works for the purpose of trade or business” and “possessing an article for making infringing copies of copyright works for the purpose of trade or business”.
Sentencing principles
8. In a number of decided cases (such as Secretary for Justice v. Choi Sai Lok & Anor [1994] 4 HKC 334, HKSAR v. Tsang Ho Kei & Tang Siu Kwong [CACC 227/2003], HKSAR v. Zhuang Xiao Luo [CACC 265/2004] and HKSARv. Lee Yuk Chun [CACC 487/2004]), the Court of Appeal has clearly explained that offences contravening the Copyright Ordinance are serious in that they severely jeopardize Hong Kong’s status as a centre of fair trade. In order to eradicate those offences, the court must impose deterrent sentences on those who commit the offences. For the abovementioned cases, which involve the same offences as those in the present case, the Court of Appeal has taken the view that, save in exceptional circumstances, immediate custodial sentences have to be imposed. A sentencing factor is the role played by the defendant in the case. A distinction should be made, for example, between the mastermind of a pirated disc manufacturing operation and someone who is responsible for manufacturing, packing and delivering the discs. The former will receive a longer sentence; as for the latter, the sentence is to be determined in light of the quantity of the infringing articles, the length of time over which the piracy took place and also other factors such as whether the defendant has pleaded guilty to the charges.
9. In HKSAR v. Tsang Ho Kei & Tang Siu Kwong, the two defendants possessed more than 6,500 pirated discs as well as 5 computers for manufacturing the infringing copies. The Court of Appeal adopted a starting point of 24 months’ imprisonment in respect of the possession of pirated discs, and took the view that the starting point for the possession of disc-replication devices should be 36 months’ imprisonment.
10. In Lee Yuk Chun,the defendant possessed approximately 3,100 pirated discs and also 12 sets of disc-replication machines and 665 blank discs. The Court of Appeal held that a starting point of 15 months should be adopted in respect of the possession of pirated discs and that 30 months was an appropriate starting point in respect of the possession of disc-replication devices.
11. None of the defendants in the two aforesaid cases was a mastermind of the piracy operation in question.
Circumstances of the present case
12. In the present case, Charge 1 involves more than 15,000 pirated discs, which far exceeds the quantities of pirated discs involved in Lee Yuk Chun and Tsang Ho Kei. In light of this, Judge Chan has, quite properly in our view, enhanced the starting point from 24 months as laid down in Tsang Ho Kei to 27 months.
13. As regards Charge 2, the present case involves at least 15 sets of disc-replication machines and more than 16,000 blank discs which could be used for manufacturing pirated discs, which far exceed the number of disc-replication machines and blank discs involved in Lee Yuk Chun. This notwithstanding, Judge Chan did not depart from the starting point of 30 months. We see nothing improper with this decision.
14. The fact that the 1st defendant had worked at the premises for only one day prior to her arrest is, in our view, a mitigating factor. At the same time, however, it is obvious that the 1st defendant came to Hong Kong from the Mainland pursuant to an arrangement to take part in the piracy, and this, involving as it did cross-border criminal activities, is an aggravating factor. The aforesaid two factors offset each other for sentencing purposes.
15. The 1st defendant is a single parent. She said her 13-year-old son had been admitted to the Beijing Dance Academy as a student and she came to Hong Kong to commit the offences in order to raise money to pay for her son’s studies. She said at trial that her son had been unable to pursue his studies as a result of her incarceration, and that she had to take care of him and her mother who was aged 76 and seriously ill. She also said that the Mainland government intended to recover possession of her accommodation for redevelopment purposes and that she would lose her home if she was unable to return to her home village to complete the formalities. In our view, where, as in the present case, a deterrent sentence is called for, the defendant’s personal background cannot be regarded as a mitigating factor.
16. In our judgment, whether viewed individually or as a whole, the sentences imposed on the 1st defendant in respect the charges are appropriate.
Conclusion
17. We dismiss the 1st defendant’s appeal against her sentences, which are neither manifestly excessive nor wrong in principle.
The 2nd defendant
18. On 27 August 2008, the 2nd defendant applied for leave to appeal against sentence. On 8 December 2008, however, she filed a notice of abandonment of application for leave to appeal (hereinafter “notice of abandonment”). She also made the following statement in a standard form of statements of the Correctional Services Department:
I, Gan Ai Rong, have received a letter from my husband. He urges me not to go on with my appeal, the reasons being that I do not have legal aid and that I am ignorant of law and unable to defend myself. After careful consideration, I have decided to abandon my appeal against sentence and my application for legal aid. I hope this will be approved by the judge.
19. Upon receiving the “notice of abandonment”, the court dismissed the 2nd defendant’s application for leave to appeal against sentence.
20. The 2nd defendant filed an affirmation on 31 December 2008, in the following terms:
After repeated consideration, I, Gan Ai Rong, have decided to give all the relevant documents of this case (DCCC 617/2008) and the course of events [sic] to the private lawyer of a warm-hearted person I got acquainted with here, in order to seek further legal advice.
Hence, I would like to renew my application to appeal against sentence, and I respectfully seek approval thereof.
21. We will treat the 2nd defendant’s affirmation of 31 December 2008 as an application to “treat the notice of abandonment as a nullity”.
Legal principles
22. In a number of decided cases, including HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1, HKSAR v. Lau Ka Keung [CACC 200/2005], HKSAR v. Law Shui Kei [2007] 3 HKLRD 114 and HKSAR v. Chan Leung Hang [CACC 16/2008], the Court of Appeal has made it clear that the abandonment of an application for leave to appeal is a serious legal action and that, in the absence of reasonable explanations, the court will not readily allow applications to “treat the notice of abandonment as a nullity” and reinstate the original application for leave to appeal.
23. The most important factor which constitutes a reasonable explanation is that the defendant was unaware that the filing of the “notice of abandonment” would render him unable to proceed with his appeal. For example, when he signed the “notice of abandonment”, he mistakenly thought that he was signing a document of an entirely different nature.
Circumstances of the present case
24. It is plain that when the 2nd defendant signed the “notice of abandonment”, she understood the nature of the document. She indicated that she abandoned the appeal because she did not have legal aid, was ignorant of law and was unable to defend herself. This shows that she did realize that she was withdrawing her application for leave to appeal, with the consequence that she could not lodge the application again.
25. As the 2nd defendant was aware of the consequence of what she did, she has failed to fulfil the requisite legal requirements which would cause the court to treat the notice of abandonment as a nullity and allow the 2nd defendant to proceed with her appeal.
26. The 2nd defendant produced at this hearing a document which describes the circumstances surrounding her arrest and subsequent making of the statements. However, as she pleaded guilty to the charges and was legally represented at that time, the aforesaid information is of no assistance to her present application.
Conclusion
27. We dismiss the 2nd defendant’s application.
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(Robert Tang)
Vice-President of the Court of Appeal
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(Peter Cheung)
Justice of Appeal
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(Maria Yuen)
Justice of Appeal
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Mr David Leung, Senior Public Prosecutor, for the Respondent.
The Appellant/1st defendant in person, present.
The Applicant/2nd defendant in person, present.
Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.
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