HCMA522/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 522 OF 2009
(ON APPEAL FROM KCCC NO. 2837 OF 2009)
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BETWEEN
HKSAR
Respondent
and
YUEN KWOK YIU
Appellant
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Before: Deputy High Court Judge Line in Court
Date of Hearing: 20 August 2009
Date of Judgment: 20 August 2009
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J U D G M E N T
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1. This is an appeal against a sentence of 10 months’ imprisonment imposed for an offence contrary to section 118(1)(d) of the Copyright Ordinance.
2. The Appellant pleaded guilty, and the particulars of the charge read that on the 21st day of May, at Shop Nos. 19 and 20 on the 1st Floor of Dragon Pearl House, Prince Edward Road, without the licence of the copyright owner of a copyright work, sold four TV game digital video discs being infringing copies of the work for the purpose of and in the course of a trade or business.
3. The Appellant is a professional dealer in infringing copies. I can say that with confidence, because I have the details of his previous convictions before me. They start on 2 June of the year 2000, when he was imprisoned for 5 months for offering for sale infringing copies, and concurrently for a similar term for possession of goods with forged trademarks. Then on 5 June of 2002, there was a total of 14 months’ imprisonment imposed in respect of five offences of having possession of infringing copies, two forged trademark offences, and a further possession of infringing copies. Then on 2 June of 2004, he was imprisoned for 4 months for again selling infringing copies. On 20 May of 2005, he was imprisoned for 6 months for importing infringing copies. On 24 April of 2006, he was imprisoned for 6 months for the possession of infringing copies; on 28 November of 2007, imprisonment for 8 months for importing infringing copies and 8 months consecutively for the possession of infringing copies. The offence here occurred on 21 May.
4. The appeal is really launched on the basis that the starting point of 15 months taken by the magistrate was too great, because only four discs are particularised in the particulars of the offence.
5. The Brief Facts revealed that the Customs Officers involved went into the shop and spotted there a batch of inlaid cards of suspected infringing optical discs displayed in the shop. The extent of the batch was not specified in the Brief Facts, which the Appellant admitted, but obviously it was far more than the four that were selected by the Customs Officer. Having selected the four identifying covers, the Appellant disappeared, having written down the details, and came back later with the infringing copies.
6. The magistrate was well aware that there were only four discs, but he, in a sensible statement of findings, said that he was not going to be bound by that because he had to look, as common sense dictated, at the whole of the activity that was taking place, and it is quite clear, and an overwhelming inference from the facts set out and admitted in the Brief Facts, that there must have been further infringing copies available to the Appellant. There was clearly a stock around the corner.
7. For some reason, the Respondents say they cannot prove those other discs were infringing copies. They are not required to for the magistrate to pass a sensible sentence. It would defy common sense that the Customs Officers went in there and identified out of a batch of titles, just four, and those four happened to come back and be the only ones that were infringing copies. That is an unrealistic scenario. The idea that a professional seller of infringing copies like this can limit his criminal liability merely by hiding his library around the corner is a proposition that is not to be countenanced.
8. Even if I were wrong about looking at the reality of the situation that existed here, even if I were limited to just looking at the sale of four infringing copies in this case, given the persistence with which this Appellant breaches the law, I would still uphold the sentence passed of 10 months and the starting point of 15 months that was taken.
9. The statement of findings sets out very clearly in a way that is reasoned and argued why it should be that the court is not limited to merely proceeding on the basis that these were four isolated instances of infringing copies.
10. Accordingly, in my view, the sentence is a proper one. The appeal against sentence is dismissed.
(P Line)
Deputy High Court Judge
Representations:
Mr Hayson Tse, Senior Public Prosecutor of the Department of Justice, for the Respondent
Mr Jackson Poon, instructed by Messrs Tang, Leung, Li & Tsang, assigned by the Director of Legal Aid, for the Appellant