HKSAR v. CHENG LAI FUN

1999, No. MA 263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 263 OF 1999

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J U D G M E N T

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1. The Appellant appeals against a sentence of six months' imprisonment passed on her by J.L. Saunders, Esquire sitting in the Magistrate's Court at North Kowloon on 2nd March 1999. That sentence was reached by way of concurrent terms of six months each for two offences both committed on 27th July 1998 in the same shop in Ma Tau Wai Road. One was of offering for sale of infringing copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to sections 118(1)(e)(ii) and 119(1) of the Copyright Ordinance, Cap. 328. This involved 310 compact discs for TV games. The other offence was of possession for sale of goods to which forged trade marks were applied, contrary to sections 9(2) and 18(1)(a) of the Trade Descriptions Ordinance, Cap. 362. This involved 876 compact discs for TV games to which one forged trade mark had been applied and another 3,428 such discs to which another forged trade mark had been applied.

2. At the time when she committed these two offences the Appellant was on bail for two other offences committed at the same shop on 18th May 1998. One of these two earlier offences was of offering for sale infringing copyright works for the purpose of 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. 328. This involved 428 CD-ROM discs. The other earlier offence was of possession for sale of goods to which a false trade description was applied, contrary to section 7(1)(b) and 18(1) of the Trade Descriptions Ordinance, Cap. 362. This involved 1,928 CD-ROM discs to which a false trade mark had been applied.

3. She pleaded guilty to the earlier offences and was sentenced to a total of two months' imprisonment by way of concurrent terms of two months on the copyright charge and one month on the trade description charge.

4. If the present sentences stand, the unfortunate effect of the Appellant not having been sentenced for these offences at the same time when she was sentenced for the earlier offences would be that she, having come out of prison, would have to go back to prison again. I understand the practical problems which stood in the way of the Appellant being sentenced for both sets of offences at the same time.

5. But in the present case, I am not confronted merely with the inherent hardship to the Appellant of having to go back to prison after having come out, going back in respect of offences committed before she was sent to prison for the first time. Here there is more. Since coming out from prison, the Appellant has completed a vocational course and she is now in full employment. This was urged upon the Magistrate but not referred to by him when passing sentence or in his Reasons for Sentence prepared afterwards. Since she was sentenced, she has continued in employment, bail pending appeal having been granted by the Magistrate.

6. It seems to me that a suspended sentence would be the best thing for the Appellant's reformation, which is in her interests and that of the society too. It will allow her to continue in her present lawful ways. And it will give her added incentive to remain in those ways, since she will know that if she offends again during the relevant period, she will be liable to imprisonment for these offences as well as any further offence or offences.

7. I consider it right to allow the appeal so as to suspend the Appellant's six-month sentences for a period of three years. The appeal is allowed accordingly.