HKSAR v. WONG CHI CHOI

HCMA 628/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 628 OF 2005

(ON APPEAL FROM FLCC NO. 1312 OF 2005)

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J U D G M E N T

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1.  The Appellant was charged with two charges of importing into Hong Kong infringing copies of copyright works, under contrary to section 118(1)(b) and section 119(1) of the Copyright Ordinance, Cap. 528.

2.  The Appellant was convicted of both charges after trial and was sentenced to a total of 13 months’ imprisonment and he now appeals against both conviction and sentence.

The facts

3.  The prosecution called evidence to show that on 11 January 2005, the Appellant had arrived at the Lo Wu Control Point, Arrival Hall, with a total of 1,540 DVDs, of which 547 DVDs were found to be infringing copies.  And then on 25 February, about a month later, the Appellant was again found in the same location bringing into Hong Kong 1,603 DVDs, of which 850 DVDs was subsequently found to be infringing copies.

4.  The evidence, for the prosecution of an expert, Mr Lau Wai-yip, who was a representative of the copyright owners who is from the Hong Kong Film and Video Security Limited, was that these infringing copies were made without the licence of the copyright owners.

5.  The witness was cross examined by the Defendant and the learned Magistrate at paragraph 7 of her Statement of Findings had mentioned the gist of that cross examination, which I will not repeat here.

6.  Basically, he disputed that some of the exhibited discs were brought in by him.  After the learned Magistrate ruled that the subject discs were infringing copies, the defence was that the article was in transit.

7.  The learned Magistrate had in her Statement of Findings set out the defence, which was apparent from the Defendant’s evidence he gave at the trial.  He knew that these DVDs were infringing copies in Hong Kong and that he did not have a licence but he had only brought them into Hong Kong in order to send them abroad.

8.  The Defendant claimed that he was working for a company in Shenzhen, and that his job was to post these DVDs from Hong Kong mainly to America and that he knew that these DVDs cannot be sold in Hong Kong because of it would be a criminal offence.

9.  The learned Magistrate very correctly referred to section 118(2) which provides for a defence if the article was in transit.  An article in transit is defined in section 198 of the Copyright Ordinance as:

“An article which: (a) is brought into Hong Kong solely for the purpose of taking it out of Hong Kong; and (b) remained at all material times in or on the vessel or aircraft in or on which it is brought into Hong Kong.”

10.  And thus the learned Magistrate very correctly found that these articles were not in transit and at the end of the day convicted the Appellant.

11.  The Appellant on appeal, in person, complained that the number of discs that he brought into Hong Kong were in fact on the first occasion over 2,000 discs and on the second occasion over 4,000 discs.  Even if that be the case it does not help him in this appeal.  Because what he is charged with is merely a smaller quantity of DVDs which were found to be of infringing copies.

12.  Secondly, he complained that at the trial he was not feeling well but he did not inform the Magistrate and I do not see again how this has any effect on him at all in helping him in this appeal.  He also complained that he wanted to find an expert as he questioned whether the expert which had been called at the trial had properly examined the discs.  The Appellant had many months before the trial to look for his expert, but he has not done so.  So again, I do not think this point assists him at all in this appeal.

13.  I do not find that there is any merit at all in the grounds of appeal against conviction.  The learned Magistrate had very properly considered the case based on the facts and on the law and therefore the appeal against conviction is dismissed.

14.  The Appellant appeal against sentence would appear to be based on the main ground that his health is not good these days.  First of all, the Correctional Services Department have excellent medical facility, even perhaps better than one an ordinary person could obtain outside.

15.  Since he appeals against sentence, I have looked at the learned Magistrate’s Reasons for Sentence, and it is clear that in the Appellant’s case a custodial sentence should be imposed and an immediate custodial sentence should be imposed.  And considering that the Defendant committed his second offence whilst on bail for the first one, and that he has two previous convictions of similar offences prior to this, the learned Magistrate’s sentence is low.

16.  In fact, it is lenient and cannot be said to be either manifestly excessive or wrong in principle.  I also see no ground to justify the appeal against sentence and so the appeal is dismissed.