HKSAR v. WONG YIU MING

HCMA 1247/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1247 OF 2000

(on appeal from SPCC 6276/2000)

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J U D G M E N T

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1. This is an appeal against a sentence of 10 months imprisonment imposed on the Defendant at San Po Kong Magistrate's Court on the 20 October 2000.

2. The Defendant had pleaded guilty to a charge of offering for sale 1,620 copyright infringing discs comprising audio, video and CD Rom discs contrary to section 118 (1)(e)(ii) of the Copyright Ordinance. Cap. 528. The offence occurred at a shop in the Hsin Kuang Centre, Lung Chung Road, Wong Tai Sin on 12 November 1999.

3. At the time of the raid by Customs Officers, the Defendant was sitting behind a cabinet in the shop where the infringing discs were found shouting "$100 for 6 VCDs" to potential customers. He admitted that he was employed to sell copyright infringing discs at a wage of $400 a day.

4. The Learned Magistrate bore in mind what had been urged upon him in mitigation, namely that :

(1) the Appellant was a 24 year old man of previous good character;

(2) he had suffered a business reversal and was in financial difficulty;

(3) he had only worked at the shop for one month; and

(4) he had co-operated with the Customs Officers.

5. He also took into account the value of the discs $20,810.00. Having done so, the Learned Magistrate adopted a starting point of 18 months imprisonment. He gave the Appellant the full discount of one-third notwithstanding the fact that his plea was not entered at the first opportunity. He gave the Appellant a further discount of two months to reflect his clear record and the mitigation.

6. There are two grounds of appeal :

(1) the Magistrate was wrong to adopt a starting point of 18 months in the circumstances; and

(2) the sentence of 10 months imprisonment was too severe and excessive in all the circumstances.

7. In considering the appropriate sentence, the Learned Magistrate rightly considered that a deterrent sentence was appropriate in this case. As the courts have repeatedly stated these offences are very prevalent and do great damage to Hong Kong's trading reputation. As Keith J said in Secretary for Justice v Choi Sai Lok and Mak Wai Hon App. for Review No. 2 1999, "Custodial sentence of immediate effect should be imposed for offences of this kind unless the circumstances can truly be said to be exceptional." He also stated that the open flouting of the law in this trade requires sentences even for first offenders to act as a deterrent to others.

8. Before stating that he adopted a starting point of 18 months imprisonment, the Learned Magistrate said this:

"As I read the authorities although the word "guidelines" have not been specifically stipulated, the Court of Appeal has stated clearly that an 18 months starting point is the appropriate point to embark upon when court is dealing with these sort of offences regardless of the quantum of discs. There are of course always exceptional circumstances but having heard mitigation, I do not see that you fall into any form of exceptional circumstances although I do of course sympathise with your business problems."

9. The Defendant listening to these remarks would have been left with the impression that the 18 month starting point adopted by the Learned Magistrate was not fixed after considering the number of discs involved in the case but as the result of a general approach to the starting point for this sort of offence regardless of the quantity of discs involved.

10. Miss Lam for the prosecution has been unable to refer me to any case in which the Court of Appeal has suggested a general starting point of 18 months imprisonment regardless of the number of discs involved.

11. Indeed, on the contrary the Court of Appeal has said that the number of infringing copies is a matter relevant to sentence. As Keith J said in the case of Choi Sai Lok, after commenting that the court could not see much difference between the culpability of storemen, packers, delivery men and salesmen, "What will justify differences in sentences between them will be for instance the number of infringing copies involved the length of time in which they have been engaged in the trade and factors personal to them such as pleas of guilty".

12. It may well be that this court would not have felt it appropriate to interfere with a starting point of 18 moths, (although on the high side of the range of starting points open to him) if the Learned Magistrate had stated in court that he had taken into account the number of discs involved in arriving at starting point. Suffiad J in HKSAR v Tang Ban Kai, MA 637 [1998] for instance did not regard a starting point of two years excessive for a Defendant offering 4,342 such discs for sale.

13. The Learned Magistrate however did not, and the Defendant may justifiably been left with the impression that the Learned Magistrate fixed the starting point on a basis which was wrong in principle.

14. In such circumstances, it is appropriate in my view for this court to reach its own view as to the appropriate starting point bearing in mind the matters before the Magistrate including the fact that the Appellant was only an employee and the number of discs involved.

15. In my view, a starting point of 15 months imprisonment would have been appropriate.

16. Following the course adopted by the Learned Magistrate I discount that by one-third to reflect the Defendant's plea of guilty and give a further discount of 2 months to reflect the Defendants clear record and the mitigation in the case.

17. I set aside the sentence of 10 months imprisonment imposed by the Learned Magistrate and substitute therefore a sentence of 8 months imprisonment.