HCMA 702/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 702 OF 2010

(ON APPEAL FROM ESCC 3353 OF 2010)

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J U D G M E N T

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1.  The Appellant had pleaded guilty to one count of possessing an infringing copy of a copyright work with a view to its being sold or let for hire by any person for the purpose of or in the course of any trade of business without a licence of the copyright owner of the work. The number of infringing copies were 126 digital video discs, and the Appellant had also pleaded guilty to one count of breach of condition of stay.

2.  The facts that were admitted before the learned Magistrate were that in the morning of 8^th August, the Appellant was seen touting the infringing copies to passers-by on the footbridge of Queensway Plaza in Hong Kong.

3.  Under caution, the Appellant admitted that he was selling the infringing copies.  The Appellant had arrived in Hong Kong as a visitor and had no permission to work here.  The total value of the infringing copies seized was $3,200.  The Appellant was sentenced to a total of four months’ imprisonment, and he now appeals against that sentence.

4.  In mitigation before the learned Magistrate, it was submitted that the Appellant is aged 40 and had been a driver in Mongolia, but for the last two months prior to coming to Hong Kong, he had been unemployed, and he had come to Hong Kong to earn some money.  It was said on his behalf that he had one daughter, who is living with his ex-wife in Mongolia.

5.  The learned Magistrate very properly considered cases relating to this type of offence, and it is clear that this type of offence called for an immediate custodial sentence.  The learned Magistrate noted that the normal sentence, for offences of this nature in relation to the infringing copies, calls for a sentence in the range of between 12 to 18 months.

6.  In this case, the learned Magistrate decided to adopt a very low starting point of 6 months’ imprisonment.  She discounted one-third because of the Appellant’s plea, and so on Charge 1 he was sentenced to 4 months’ imprisonment.

7.  For the offence of breach of condition of stay, the learned Magistrate noted that the usual sentence is one or two months’ imprisonment on a plea of guilty for a two way permit holder, and so she sentenced the Appellant to 2 months’ imprisonment.

8.  As these were separate and distinct offences, the learned Magistrate was entitled to make both sentences consecutive.  She did not do so in this case, so had ordered that the 2 months’ imprisonment be served concurrent to the 4 months, making a total of 4 months’ imprisonment.

9.  The Appellant appealed on the ground that he had learned his lesson, that he is a university student, and he wants to earn his diploma, and he is also worried about his mother, because she is ill.

10.  None of the above was submitted on his behalf in mitigation before the Magistrate.  As for the Appellant’s submission on appeal that he is a university student and wishes to complete his diploma, he should have known about that before coming to Hong Kong, and as for his mother’s illness, no document was submitted, and this was not mentioned in the court below. Obviously that was not uttermost in the Appellant’s mind at the time when he appeared before the learned Magistrate.

11.  I think that the sentence which the learned Magistrate has imposed in this case was on the light side, I do not propose to interfere with it, and so I will leave the sentences as they are and dismiss the appeal.