HKSAR v. YUNG MEI LAN

HCMA1224/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1224 OF 1999

(ON APPEAL FROM NKCC 5021 OF 1999)

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J U D G M E N T

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1. The appellant was charged with possession for trade or business two charges, involving firstly, 347 compact discs and secondly, 60 video compact discs, being infringing copies of literary works, alternatively cinematography films in which copyright subsisted, contrary to section 5 of the Copyright Ordinance. The appellant pleaded guilty to both these charges on 12 October 1998.

2. The facts of the case admitted by the appellant revealed that the appellant was in a shop in Mongkok when officers from the Customs Department raided the shop where the infringing copies were found. The learned magistrate then called for Probation Report for the purpose of sentencing. This Report showed that the appellant, then aged 19, was rebellious and wayward having mixed with undesirable peers. It also showed that the appellant had left school after Form 3, and since early 1995 had constantly absconded from home. It was only in February 1998 that she returned to live at home. The magistrate decided to give the appellant a chance because it was submitted on behalf of the appellant that she was then remorseful and showed a willingness to turn over a new leaf.

3. As a result, by way of sentencing, the learned magistrate, on 19 February 1999, ordered the appellant to undergo a Community Service Order. After the Community Service Order was made, the appellant again started to live away from home. Of the 32 hours of Community Service assigned to her by the probation officer, she only attended 16 of those 32 hours, making excuses that she either overslept or was tired.

4. The appellant further severed contacts with the probation officer between 20 May 1999 and 9 July 1999. It was later discovered that during that period when she broke off contact with the probation officer, she had undergone an abortion in Shenzhen. After resuming contact with the probation officer, the appellant promised to complete the Community Service Order, but despite such promise, for a second time she broke off contact with the probation officer. A warrant of arrest was then issued on 19 October 1999, as a result of which, the appellant surrendered to the police on the following day.

5. She came before a second magistrate on 28 October 1999 and admitted being in breach of the Community Service Order. The second magistrate then discharged the Community Service Order and after considering reports in relation to the appellant, he made a Training Centre Order from 25 November 1999. The reasons that the learned magistrate gave for making the Training Centre Order was that the appellant had been given adequate chances, both when she was initially sentenced by the first magistrate and even after the initial breach by her in completing the Community Service Order. The learned magistrate also took the view that since the appellant had shown a total disregard for the sentence of the court and the authority of the probation officer, she would most likely breach the Order again if he acceded to her request to continue with the Community Service Order. The magistrate also took into account the recommendation in the Training Centre Report which stated that the appellant was suitable for Training Centre and concluded that in the interest of reforming the appellant, the officer making the Training Center Report was of the opinion that the appellant may stand a chance of success in turning over a new leaf if given due and adequate social intervention, and further stating that a course of disciplinary training coupled with a period of after-care supervision would be beneficial to her reformation.

6. I can find nothing wrong with the views taken by the learned magistrate in making the Training Centre Order, particularly in view of the number of chances the appellant had been given. The sentence is not manifestly excessive nor is it wrong in principle.

7. For these reasons, the appeal by this appellant against the Training Centre Order of the magistrate is dismissed.