HKSAR v. WONG KA HIM

HCMA496/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.496 OF 1999

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J U D G M E N T

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1. The Appellant was charged with offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner.

2. The particulars of the charge stated that the Appellant on 24th September 1998 at the right hand side of Shop 102, 1/F, Kwun Tong Plaza, 68 Hoi Yuen Road, Kwun Tong, Kowloon, in Hong Kong, without the licence of the copyright owner, offered for sale 1620 numbers of music compact disc being infringing copies of copyright works, namely, sound recordings for the purpose of trade or business.

3. On 4th May 1999, the Appellant appeared before the Principal Magistrate in Kwun Tong Magistracy and pleaded guilty to the charge. He was then represented by the Duty Lawyer.

4. The admitted facts show that on 24th September 1998, the Customs Officers executed a search warrant on the Appellant's shop and found the discs involved. Under caution, the Appellant said that he was the proprietor of the shop, all the seized discs belong to him and were for sale to customers. He had knowledge of the seized discs to be infringing copyright works. He used the seized audio equipment to play the disc and advertising price board for attracting customers; and he did not have any authorization from the copyright owner.

5. The Appellant had nine previous convictions but no similar offences. In his mitigation, the Duty Lawyer stated that the Appellant was out of work for about six months before he engaged himself in the business of selling pirated discs and that he would not do it again. It was urged upon the Court not to impose any immediate custodial sentence on the Appellant.

6. The learned Magistrate adopted a starting point of 18 months but reduced it to 12 in view of the guilty plea. The Appellant now appeals against that sentence.

7. Conducting his own appeal, the Appellant now said that he was a substituted worker at the shop. He also argued that the heavier sentences were only imposed by Magistrates after May this year when there was much publicity on this kind of offences. It was unfair to him because there was delay for his case to be tried.

8. However, I do not consider there is any merit in such points raised. I have read the relevant transcript and the Reasons for Sentence. The Magistrate had taken into consideration the circumstances of the case, the number of discs seized and the prevalence of the crime in the locality of Kwun Tong before deciding on the sentence. He was correct in pointing out that a deterrent sentence was appropriate for such offences. He had also referred to the authority of HKSAR v. Tang Ban Kai, HCMA637/98. In that case, two years was used as the starting point.

9. In view of the fewer number of discs involved, the learned Magistrate had already adopted a lower starting point in the present case. The sentence imposed is neither wrong in principle nor manifestly excessive. I shall therefore dismiss this appeal accordingly.