HKSAR v. XIE, YAOHUI

HCMA1031/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1031 OF 2006

(ON APPEAL FROM ESCC 4238 OF 2006)

---------------------------

---------------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an appeal against sentence only.  The appellant was convicted on his own plea of two offences of possession of infringing copies of copyright works contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Chapter 528, being CD-ROM and Game Discs comprising 63 discs in respect of the 1^st charged offence and 3,865 discs in respect of the 2^nd charged offence.  He was convicted also of breaching a condition of his stay in Hong Kong, by taking up work as a casual worker, contrary to section 41 of the Immigration Ordinance, Chapter 115.  That was in respect of the 3^rd charged offence.  The magistrate imposed wholly concurrent sentences of 6 and 12 months’ imprisonment respectively for the 1^st and 2^nd charged offences and 2 months’ imprisonment for the 3^rd charged offence.  That was a total of 12 months’ imprisonment.  The appellant appeals on the basis that his sentence was too severe.

2. The facts of the case were not unusual.  Customs officers intercepted the appellant as he was carrying a plastic bag in North Point.  They searched the bag and found the optical discs, the subject of the 1^st charged offence.  They also found a set of keys and used them to access a room in a small flat nearby.  In the room were found the optical discs, the subject of the 2^nd charged offence, and the appellant’s co-defendant at trial.  When the appellant was further questioned, it was learnt that he was a recent visitor from the Mainland.  One of the conditions of stay imposed upon him was that he not take up employment.  The appellant subsequently admitted he had been paid $200 per day for sorting and delivering the offending discs. 

3. The magistrate in arriving at the sentences of the 1^st and the 2^nd charged offences referred to the leading case of the Secretary of Justice and Choi Sai-lok & anor (1994) 4 HKC 334.  In that case, the Court of Appeal held that the length of sentence should be determined by factors such as the number of infringing copies involved, the length of time the offender had been engaged in the trade, and other factors personal to the offender.  Not unsurprisingly over the years, as the magistrate pointed out, sentences in large part have been based on the number of infringing copies possessed or dealt with by the offender.  On that basis, he took starting points of 9 months and 18 months’ imprisonment respectively for the 1^st and 2^nd charged offences.  Because of the appellant’s plea of guilty, those starting points were reduced to 6 months’ and 12 months’ imprisonment.  Those sentences are unexceptional given the number of discs involved and, in my view, properly reflect the gravity of the offence and the mitigation available to the appellant.  So far as the 3^rd charged offence was concerned, the magistrate adopted a proper starting point of 3 months’ imprisonment.  That was reduced to 2 months’ imprisonment to reflect the appellant’s plea.  The magistrate ordered all sentences to be served concurrently.  That was over generous of him.  As he pointed out in his reasons the sentence imposed in respect of the 3^rd charged offence should in principle have been ordered to run consecutively to the other sentences.  Nevertheless, I do not propose to interfere with the sentences as they stand. 

4. The appeal is dismissed.