HKSAR v. LEE CHI KEUNG

HCMA284/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.284 OF 2002

(ON APPEAL FROM ESCC 678 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was convicted of an offence of possession for the purpose of trade or business of infringing copies of copyright works, contrary to section 118(1)(d) of the Copyright Ordinance, Cap.528. He pleaded guilty and was sentenced to a term of eight months' imprisonment.

2. The facts of the case were quite simple. He was arrested in the course of closing the shutter of a shop in a computer center at no.298 Hennessy Road in Wanchai, which I may say, is an address which is notorious for these sorts of cases. When the shop was searched, some 204 CD-ROMS worth $5,100 were found which were infringing copyright works. The appellant made a complete admission to the police regarding his role in selling those items.

3. The magistrate took a starting point of sentence of 12 months' imprisonment. That was relatively lenient in the circumstances of the case. Starting points in the range of 12 to 18 months have been applied in cases of this sort depending on the circumstances of the particular case. That means in this case the appellant received a sentence, following his plea of guilty, of eight months' imprisonment. That sentence was perfectly proper in the circumstances of the case.

4. It is true to say that the appellant does not really appeal against that sentence on the basis that it is too severe or wrong in principle. What he asks me today is to take into account humanitarian reasons so as to further reduce his sentence.

5. The appellant has a mother-in-law living in a house in his name in China. There are various bills required to be paid in respect of the support of that house so his mother-in-law can live in it. Those bills are the appellant's responsibility. He is concerned that he cannot pay them whilst he is in custody. They are being paid by somebody else at the moment. The appellant wants to be released so that he can pay those bills.

6. Of course, the reasons advanced by the appellant in this regard cannot amount to such an exceptional humanitarian basis warranting a further reduction in his sentence. Before humanitarian reasons can be the basis of any reduction of sentence, they must be exceptional as to the hardship they cause to the appellant personally or to someone else. I have sympathy for the appellant's concerns about his difficulties with his mother-in-law in China, but that cannot be the basis for him receiving any reduction in sentence.

7. Accordingly, the appeal against sentence is therefore dismissed.