HKSAR v. LUK CHAU YIN

HCMA25/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 25 OF 1999

(On appeal from KTC 2490 OF 1998)

--------------

--------------

----------------

J U D G M E N T

----------------

1. On 11 December 1998, the appellant pleaded guilty before Miss J Livesey, magistrate, to two offences of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner. He was sentenced to eight months' imprisonment for each charge, to be served concurrently. He now appeals that sentence.

2. The prosecution's summary of facts, with which the appellant agreed, states that a shop in Kwun Tong was targeted by police officers who executed a search warrant. As a result of that a total of 2,201 CDs were seized, which were later found to infringe existing copyrights. The appellant was minding the shop. He was arrested and under caution admitted he was employed to run the shop for wages by an unknown employer. Cash of $3,645 also seized represented the proceeds of sale of the infringing CDs.

3. In her reasons for sentence the magistrate commented that the offence took place in Kwun Tong Plaza which, in her experience as a Kwun Tong magistrate, is a black spot for this sort of offending. She referred to authorities which indicated deterrent custodial sentences are called for. She adopted a starting point of 12 months for each offence and overall, and then gave a one-third discount for the appellant's plea.

4. He had a number of previous convictions and there was nothing in his background which warranted any further discount.

5. These offences are prevalent and in a case decided about two years ago, the Court of Appeal began stating that a deterrent sentence is warranted. Since then there has been no reduction of offending; probably the reverse. It is incumbent for sentencing courts to press home the seriousness of the crime by continuing to pass deterrent sentences on those who are caught, even if they are first offenders and may not be the proprietors. The reputation of Hong Kong in the international arena as a place where the rights of copyright holders are upheld must be protected as much as possible.

6. My task is to consider the appellant's grievance that because he is an employee the sentences passed are too severe, and to alter them accordingly, but only if I find the magistrate erred in principle or passed sentences that were manifestly excessive.

7. In my view she has done neither.

8. The appeal is dismissed.