HKSAR v. LEE YUK CHUN

CACC 487/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 487 OF 2004

(ON APPEAL FROM DCCC NO. 783 OF 2004)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1. This is an appeal against sentence, leave having been given by the single judge on 3 February 2005, legal aid having been refused.

2. The applicant was charged together with another person with three offences :

(1)	Possession, on 29 July 2003, of infringing copies of copyright works, contrary to sections 118(d) and 119(1) of the Copyright Ordinance, Cap. 528;
(2)	Making for sale or for hire infringing copies of copyright works, contrary to sections 118(a) and 119(1) of the same Ordinance; and
(3)	knowingly having possession of articles intended for use to make infringing copies of copyright works contrary to sections 118(8) and 119(2) of that Ordinance.

3. The facts were as follows.  On the day in question Customs Officers saw Lai Chun Tak, who was the first defendant, emerge from a lift at the ground floor lobby of a building in Kwai Chung, and he was carrying two plastic bags which contained a large number of suspected infringing compact discs.  He told the officers that the discs came from Flat F on the 10^th floor, to which premises he had keys.  He was taken to those premises and when officers entered, they saw this appellant (who was the second defendant) in one of the rooms, tidying up some transparent plastic bags which were on the floor.  Two keys to the premises were found inside her rucksack.  Several thousand suspected infringing compact discs were found in the premises, as well as computer equipment for making infringing discs, namely seven compact disc writers, three compact disc replicating machines with seven compact disc rewriteable drives, two CD replicating machines each equipped with five CD rewritable drives, and 665 blank recordable compact discs.

4. The appellant was arrested and she said that she was working in the premises and had done so for two months and was responsible for packing the infringing compact discs at a salary of $250 per day.  She also said, and it was not contended otherwise, that the first defendant paid her wages and that she who was responsible for putting the discs into the replicating machines.  The first defendant told the police that the articles and machines did not belong to him and that he was employed at the premises.

5. The material that was proved to be infringing material, and that was seized, totaled 2114 CD-ROM discs, 616 music compact discs, 67 music video compact discs, and 569 MP3 discs.

6. The appellant and the first defendant pleaded guilty before Judge Poon in the District Court on 27 October 2004.  The appellant was then aged 49 years and was a person of previous good character.  The first defendant, on the other hand, who was then aged 35 years, had four previous convictions for possession of infringing copies of copyright works.

7. In her Reasons for Sentence, the judge expressed the view that “whilst this is not a large scale, sophisticated operation, neither could it be said to be a small sized one”; and that no difference was to be discerned in the role played by the two defendants.  She noted the previous convictions of the first defendant and correctly used that in aggravation of sentence.

8. In the case of the first defendant, she adopted a starting point of 18 months imprisonment in relation to the first charge; three years in relation to the second; and three years nine months in relation to the third.  She accorded the normal one third discount for his plea of guilty and, accordingly, sentenced him to terms of 12 months imprisonment; two years imprisonment; and 2½ years imprisonment in respect of those charges, respectively, ordering them to run concurrently; so that in his case she imposed a total sentence of 2½ years imprisonment.

9. In relation to this appellant, the judge took a staring point of 15 months imprisonment for the first charge; 2½ years imprisonment for the second; and 3 years imprisonment for charge 3; and again making a reduction of one third to recongise the guilty pleas, sentenced her as follows :

1)	charge 1	:	10 months imprisonment;
2)	charge 2	:	20 months imprisonment; and
3)	charge 3	:	2 years imprisonment.

She ordered those sentences to run concurrently, making a total in the case of this appellant of 2 years imprisonment.

10. Our attention has been drawn by counsel for the appellant, as well as by counsel for the respondent, to quite a number of cases in which sentences have been imposed for like offences.  Whilst it is to be emphasised that the sentences for such cases must depend upon the facts of the particular case, the role played by each culpable party, and the circumstances of the sentenced person, it does seem to us that the overall sentence imposed in relation to this appellant was manifestly excessive.

11. As is clear from Secretary for Justice v Choi Sak Lok (1999) 4 HKC 334, offences such as these call for an immediate custodial sentence save where the circumstances can truly be said to be exceptional.  The court made the further points that :

‘We have no doubt that a distinction should be drawn between the proprietors of retail outlets and warehouses to commit these offences, and the persons employed by them.  The former should receive longer sentences than the latter.  But where we disagree with the judge is in the distinction which he drew between salesmen on the one hand and couriers on the other.  The roles played by storemen, packers, delivery men and salesmen may be different, but we do not see much difference between them in terms of criminal culpability.  What will justify differences in sentences between them will be, for example, the number of infringing copies involved, the length of time in which they had been engaged in the trade in fact is personal to them such as pleas of guilty.’

‘What must be stated is that an assertion by a defendant that he is a mere employee of the business will not warrant the suspension of an otherwise appropriate sentence of imprisonment.  And in this context, it is well to heed the wise words of Leonard J in Ng Wai Ching :

“The typical case is one where a young man with no previous convictions is employed to sell the goods from a small shop for a salary.  When arrested and charged he pleads guilty and says that he has not been employed there for long.  The employers are not brought to justice despite claims in mitigation that the salesman gave as much information as he could to investigators...  It is very unfortunate that, despite their efforts the Customs and Excise appear to have been unable so far to catch the big fish of the trade and can only bring the minnows before the courts.  Without their salesmen, however, the big fish cannot operate and so the salesman must be deterred.  Experience has shown that they are not deterred by fines, so that resort needs to be had to custodial sentences, even where the offender is a young person with a clear record.” ’

...

‘There is one further point which we wish to add.  The preparation of a case of this kind of trial involves considerable efforts in locating the copyright owners of the infringing copies, and obtaining confirmation from them that they are indeed the copyright owners and that the copies seized were not produced under licence.  That caused Mortimer JA in Li Wan Kei to say :

“It may be that... if there is a full indication of an intention to plead guilty at the very outset which avoids all the elaborate preparation and expense for trial, this also will be reflected in the sentence passed.” ’

‘We agree with that observation.’

12. This was a manufacturing operation, albeit apparently of moderate size, in which the appellant had been engaged for some time and those serious aspects of the case required reflection in the approach to sentencing.  Nonetheless, we have perused a significant number of cases for like offences and, with one exception, the starting points adopted, especially for the second and third offences, are materially higher than those normally adopted for an operation of this size and the role played by this particular appellant.  Whilst an immediate custodial sentence was, without doubt, demanded, this was an offence committed by a person acting in the capacity of an employee and aged 49 years without previous convictions for any offence, let alone offences of this nature, and she co-operated fully with the authorities intimating at an early stage that she would plead guilty.

13. We take the view that the appropriate overall sentence after plea in this case, for this appellant, is one of 18 months imprisonment.  That is arrived at as follows :

Charge 1:	a starting point of 15 months imprisonment with a resulting sentence of 10 months;
Charge 2:	a starting point of 24 months imprisonment with a resulting sentence of 14 months; and
Charge 3:	a starting point of 30 months imprisonment with a resulting sentence of 18 months.

The extra two months deduction over and above the onethird discount in respect of each of the last two charges is to give effect to the principle articulated by Mortimer JA in Li Wan Kei as to early co-operation and early plea in these cases. 

14. The sentences are ordered to run concurrently, resulting in a total sentence of 18 months imprisonment.  We allow the appeal to that extent.