HKSAR v. LU PING

HCMA154/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.154 OF 2006

(ON APPEAL FROM KCCC 354 OF 2006)

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

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

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

REASONS  FOR  JUDGMENT

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

1. The appellant pleaded guilty to one charge of “possession for the purpose of, or in the course of, any trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner”, contrary to section 118(1)(d) of the Copyright Ordinance (Cap.528) and one charge of “breach of condition of stay”, contrary to section 41 of the Immigration Ordinance (Cap.115).  She was sentenced to partly concurrent terms of eight months and two months respectively making a total of nine months’ imprisonment.  The appellant appeals against the sentence.

2. The appellant was D2 at trial.  The charges she pleaded guilty to were Charges 2 and 4.  The facts on which she pleaded were nevertheless simple and capable of standing alone.  The following is how the magistrate summarized them :

“… The facts revealed that during an anti-piracy operation, customs officers attended a commercial building in Mongkok and found the defendant sorting optical discs inside a unit.  Under caution she admitted that having come to Hong Kong as a visitor she was working as a daily worker inside the unit.

One of the conditions of her stay in Hong Kong was not to take any employment paid or unpaid.

In the said unit customs officers seized a total of 684 CD-Roms and 1,870 PC game discs, all of them pirated copies of literary works.”

3. Turning to the appellant’s background and the reasons for sentence proper, he said :

“The defendant had a clear record.  She had a family of 2 young children to support.  According to her lawyer, she also had an mother suffering from cancer in Hong Kong.  She committed the offence for financial reasons.  While I had all the sympathies for the defendant’s plight, none of these constituted valid mitigating factors or exceptional circumstances.

Offences of this kind have been prevalent normal case involving breach of copy right would warrant a custodial sentence ranging from 12 to 18 months.  Although in this case the defendant was not the operator, foot soldiers such as the defendant were vital in the operation.  Furthermore, by talking part in the illicit trade the defendant had also been in breach of her conditions of stay, rendering the circumstances of this case none serious than the normal ones.

In considering what was the proper starting point, I took into account of the above matters and the fact that it was a relatively small operation.  I considered 12 months imprisonment a proper starting point.  This was reduced to 8 months to reflect her guilty plea.

As for the 2^nd charge (Breach of Condition of Stay), I adopted the usual 2 months’ imprisonment as the proper sentence.  Having taken into account of the rampancy of the situation and the totality principle, I ordered that one month to run consecutive to the offence concerning breach of copy rights.  In all the Defendant was to serve 9 months imprisonment.”

4. In my judgment, the magistrate’s reasoning is not in any way to be faulted.  Conversely, all that the appellant can repeat before me is that her family is going through a difficult time.  That is not however a valid ground of appeal and the appeal is dismissed.