HKSAR v. YE HAI YAN

HCMA911/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 911 OF 2003

(ON APPEAL FROM NKCC 4745 OF 2002)

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J U D G M E N T

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1. On 28 August 2003 at Eastern Magistrates Court the appellant pleaded guilty to one offence of selling infringing copies of copyright works for the purpose of, or in the course of, any trade or business without the licence of the copyright owner contrary to section 118(1)(e)(i) and section 119(1) of the Copyright Ordinance, Cap. 528. She also pleaded guilty to two offences of possessing 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 sections 118(1)(d) and 119(1) of the same ordinance.

2. In respect of each of the offences the appellant was sentenced to a term of 14 months' imprisonment such sentences to be served concurrently.

3. She appealed against her sentence which appeal I allowed on 29 January to the extent that I set aside the sentences of 14 months' imprisonment and substituted for them sentences of nine months' imprisonment, such sentences to be served concurrently. My reasons for so doing follow.

4. The facts admitted by the appellant (who was the 7th defendant on the Information) were (inter alia) as follows (and I set these facts out in some detail in part because of what I say in paragraph 12 below) :

"1. On 15.7.2003, Customs officers mounted an anti-piracy operation at Mongkok area against a shop selling infringing CDs to customers by issuing sales slip upon payment of the price and requesting customers to collect the ordered CDs at another place. At about 1130 hours, officers conducted reconnaissance and found that the shop had already opened for business. Officers observed that empty CD boxes and sales banners were on display at the shop and four persons were engaging at sales activities. Officers then [moved] for surveillance or for the eventual raiding action at the following locations :

(a) at the staircase outside Place B;

(b) at the building entrance of Place B;

(c) on the pavement outside a blind alley at 636, Nathan Road, Mongkok;

(d) at Place C and

(e) at Place A.

2. At about 1305 hours, PW1 at location (a) saw a woman (later identified as D7) came out from the flat of Place B. Shortly afterwards, PW2 at location (b) saw D7 came out from the building of Place B. PW2 then took video on D7 through concealed video camera until D7 arrived at location (c). D7 then went into the blind alley at location (c). PW3 through a video camera mounted earlier inside the blind alley observed that D7 placed a batch of black plastic bags on the floor at the dead end of the blind alley and then went out to the pavement. Accordingly, PW3 took video on the activities. Simultaneously, PW4, who had already posted herself in the vicinity of location (c), also witnessed D7's going into and coming out from the blind alley. PW4 saw D7 waited there on the pavement. PW4 saw a man (later identified as D6) [going] into the blind alley. He also saw D7 [go] away towards location (a). PW3, again through the video camera mounted there, observed D6 pick up the batch of black plastic bags and put it into a paper bag. D6 then left the blind alley. When PW4 saw D6 go out from the blind alley, she shadowed him to location (d) and saw him hand the batch of black plastic bags to another man (later identified as D5). After that, D6 left location (d). The time then was 1315 hours.

3. At about 1325 hours, PW5 conducted a test-buy with marked money at Place A. He observed that four men (later respectively identified as D1 to D4) were actively involving in selling activities, including touting to passers-by, talking to customers, receiving money from and giving changes to customers and issuing sales slips. In particular, PW5 was served by D2 who issued a sales slip to PW5 and told PW5 to return in 20 minutes for collection of the selected discs while D3 received the marked money and placed it into a plastic till. After the test-buy started, PW6 was assigned to observe the activities at Place A from time to time. In particular, at 1340 hours, PW6 saw D1 clear the business money in the plastic till and gave the money to D2. According to his observation, PW6 found that D1 to D4 were all the time tending the shop.

4. After the test-buy, at about 1340 hours, PW1 at location (a) again saw D7 came out from the flat of Place B. D7 and D6 were seen by the various PWs repeated the activities as described in paragraph 2 above. At about 1349 hours, after D6 had handed over the batch of black plastic bags to D5 at location (d), PW5 then went forth to D5 and surrendered the sales slip to D5 in exchange for CDs packed in a black plastic bag. Later PW5 inspected the CDs and found them to be those he had earlier ordered at Place A.

5. After the first test-buy, PW7 conducted a second test-buy at about 1410 hours. PW7 observed that D1 to D4 were tending the shop. In particular, PW7 was served by D2 who received marked money from PW7, issued a sales slip to PW7 and gave the marked money to D1 who in turn gave change to PW7. At about 1414 hours, PW1 at location (a) saw D7 left the flat of Place B. D7 and D6 were likewise seen by the various PWs repeated the activities as described in paragraph 2 above. At about 1425 hours, PW7 went to Place A and enquired with D2 about the availability of the CDs he had ordered. D2 told PW7 to go to location (d) to get the CDs from a man in blue shirt and wearing glasses in metal frame. The description was later identified to match with the dressing of D5. At the same time, i.e. at 1425 hours, PW4, who had followed D6 to location (d), saw D6 hand the batch of black plastic bags to D5. D6 then left location (d) and was followed by PW8. PW4 remained in location (d) and observed that D5 put the batch of black plastic bags into another plastic bag.

6. At about 1430 hours, PW4 and PW7 turned up at location (d) and approached D5. PW4 saw D5 took one black plastic bag from among the batch of plastic bags and handed it to PW7. PW7 later inspected the content and found it to be CDs he had earlier ordered at Place A. At this material time, the following enforcement actions took place.

(a)	at Place A : PW9 - PW12 came out from ambush and arrested respectively D1 to D4 and PW13 searched the shop under search warrant;
(b)	at location (d) : PW14 came out from ambush and arrested D5;
(c)	on the pavement outside 27, Tung Choi Street, Mongkok, PW8, who had all along followed D6 after D6 had left location (d), revealed his identity and arrested D6.

7. Simultaneously, at location (a), taking the opportunity of an inhabitant entering the flat in which Place B was situated, officers got through the main entrance gate without difficulties. Having entered into the flat, officers found four rooms inside the flat. Officers knocked on the doors but no body answered. Officers then broke open the doors one by one and eventually found D7 inside Place B. At about 1438 hours, PW17 cautioned and arrested D7 while PW18 searched Place B under search warrant."

5. In his 'Reasons for Sentence' the magistrate had this to say :

" I convicted the defendant on her own pleas.... She was represented. I sentenced her to a total of 14 months in prison. She appeals sentence. ...

She is an unemployed citizen of the PRC on a two-way permit who has some debts to deal with in China. She was paid $300 per day to assist in this criminal enterprise. Her husband and son reside in Hong Kong. She admitted in mitigation that her task was to deliver the discs.

I considered all that was submitted in mitigation, including her clear record and early pleas. I found that a deterrent sentence was right. This was a well-set-up criminal operation involving seven persons. Her responsibilities included moving the discs to the buyers. The defendant had been convicted of three separated offences. I considered sentencing on a global basis. I found that 21 months in prison after trial was the right starting point. I allowed for a full 1/3 discount on her pleas and sentenced her to 14 months in prison, each charge, all concurrent."

6. The perfected grounds of appeal, settled by Mr Loftus, which are commendably succinct are these :

"	(1)	The learned magistrate wrongly failed to give sufficient consideration to the relatively short period of time in which the appellant had engaged in the criminal enterprise.
	(2)	[He] wrongly failed to give sufficient consideration to the relatively small amount of discs possessed by the appellant.
	(3)	[He] wrongly failed to give sufficient consideration to the role of the appellant as an employee only, rather than as a proprietor of retail outlets.
	and
	(4)	The sentence was manifestly excessive in the circumstances."

7. In his written submissions Mr Loftus has expanded upon those grounds of appeal as follows :

"It is submitted that the sentence of 14 months imprisonment imposed by the Learned Magistrate is manifestly excessive for the following reasons :

a).	The learned magistrate wrongly failed to give sufficient consideration to the appellant's personal background and circumstances. At the time of the offence, the appellant was a housewife aged 31, relying on her husband. She has a son aged seven. As an unemployed citizen of the PRC on a two-way permit, she was paid HK$300 per day to assist in this enterprise. The appellant came to Hong Kong only on 27 June, that is, two weeks before the arrest. The relatively short period of engagement in the trade should be a relevant mitigating factor to be taken into account. It is respectfully submitted that had the magistrate given adequate and sufficient consideration to her relatively short period of participation in the criminal enterprise, he or any reasonable magistrate would have passed a custodial sentence with a shorter term.
	The learned magistrate wrongly failed to give sufficient consideration to the relatively small amount of discs possessed by the appellant. It is therefore, respectfully submitted that the relative small amount of a pirated discs in the present case would justify a custodial sentence with a shorter term for a first offender.
b).	In SECRETARY FOR JUSTICE v CHOI SAI-LOK & ANOR [1999] 4 HKC 334, the court of appeal did not lay down any guidelines as to the length of sentence. However, as suggested in paragraph 18 of HKSAR and WU PAK CHEUNG (HCMA 261/2002), consistency in sentencing is desirable. CHOI Sai-lok was convicted together with the second defendant in the District Court in which CHOI was found in possession with 719 pirated VCD and second defendant with over 23,000 pirated VCDs and CDs. It is submitted that CHOI's case bears much more aggravating features and higher degree of seriousness than the appellant in this case.
and
c).	The learned magistrate wrongly failed to give sufficient consideration to the role of the appellant as an employee only, rather than as a proprietor of retail outlets. The appellant was employed at HK$300 a day for delivery of the infringing copies of sound recordings and literary works. In CHOI Sai-lok, the Court of Appeal said that a distinction should be made between such offences committed by the proprietors of retail outlets on the one hand and the persons employed by them on the other. The role of the appellant in this case was no greater than that of the offenders in CHOI Sai-lok."

8. In her very helpful submissions Ms Shine for the respondent has referred me to a number of authorities as follows :

	(1) HKSAR v. WONG Hiu Ngai, HCMA1055/2000;
	(2) HKSAR v. LAI Mei Po, HCMA761/2002;
and	(3) HKSAR v. CHAN Sum Fuk, CACC228/2002.

9. Whatever else might be said, having read those authorities and those referred to me by Mr Loftus, there appears to me to be a very wide range of sentence imposed for offences of this nature. That is plainly unsatisfactory because of the requirement of sentencing consistency.

10. Doing the best that I can, it seems to me that the appropriate level of sentence following upon conviction after trial for offences of this nature and involving about 1,200 items is about 14 months' imprisonment. I am assisted in reaching that conclusion, which finds agreement with both Ms Shine and Mr Loftus, by reference to those cases mentioned in paragraph 7(b) above.

11. That being so, and giving to the appellant full credit for her very early pleas of guilty, the appropriate sentence is one of nine months' imprisonment in respect of each offence, such sentences to be served concurrently. It follows that, in my judgment, the sentences imposed upon the appellant by the magistrate were excessive.

12. That is not the end of the matter. I was told at the hearing of this appeal that the appellant (then D7) was the only one of the seven defendants to be dealt with in August of last year. The other six defendants came up for trial in December before a different magistrate. If I have understood the position correctly those six defendants faced the same charges as did the appellant.

(1)	D1 pleaded guilty 'late in the day' and was sentenced to two months, eight months and two months imprisonment, those sentences to be served concurrently.
(2)	D2, D3 and D4 were acquitted of all charges.
(3)	D5 and D6 were both acquitted of the 2nd charge faced by the appellant and both were convicted of the 1st and 3rd charges faced by the appellant. In respect of both the 1st and 3rd charges both were sent to prison for a term of three months, those sentences to be served concurrently.

13. It follows from that, and leaving aside for the moment the fact that the question of disparity did not form a separate ground of appeal, that this appellant must have had a very real and understandable sense of grievance and injustice.

14. The reason why that matter was not raised in the grounds of appeal was because those advising the appellant were apparently not aware of the disparity until shortly before the hearing of this appeal when Ms Shine very properly informed them of it. Whether or not the magistrate who sentenced D1, D5 and D6 was himself aware of the sentence imposed upon the appellant some four months previously I do not know.

15. It was for all of these reasons that I allowed this appeal to the extent that I did.