HKSAR v. CHAN KWOK HUNG

HCMA 707-714/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 707-714 OF 2000

(On appeal from TWCC 268, 1439, 1513-1516 &

2001-2002 of 2000)

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J U D G M E N T

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1. The Appellant, Chan Kwok Hung, pleaded guilty to a total of 7 charges of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner and one charge of possession of obscene article for the purpose of publication.

2. In respect of each of the 7 charges of copyright infringement, the Appellant was sentenced to 12 months imprisonment. In respect of the obscene article charge, he was sentenced to 6 months imprisonment.

3. The sentencing Magistrate also ordered that 3 months of the sentences on 6 of the copyright infringement charges and 6 months on the obscene article charge are to run consecutively, making a total of 36 months imprisonment. She also ordered the Appellant to pay costs of $5,000.00 for each of the 8 charges making a total of $40,000.00.

4. The Appellant now appeals against the sentences as well as the order on costs.

5. The offences were committed between 30 November 1999 and 4 May 2000 involving a total of about 7,000 VCDs, 400 CDs and about 1,030 CD Roms.

6. The Appellant admitted, in the course of investigation by the Customs and Excise Department, that he was the owner or the person in charge of a shop at No. 12B Ground floor, Po Sing Centre in Kwai Chung. The offending discs were found during raids by officers of Customs and Excise Department on the dates of the offences.

7. As the learned Magistrate quite rightly pointed out, the Appellant had demonstrated a complete and total disregard for the law in that he repeated the same offences after his arrests over a period of 4 or 5 months. In particular, 4 of the offences were committed on 6th, 12th, 14th and 26th January 2000 which suggested that he re-stocked and re-commenced the illegal activities almost immediately after his shop had been raided.

8. The Appellant's unlawful behaviour, is an affront to the rule of law.

9. Copyright infringement offence is a serious offence carrying a maximum sentence of 4 years imprisonment and a substantial fine. The Court had repeatedly warned that a deterrent sentence is called for and an immediately custodial sentence is inevitable irrespective of the background of a particular defendant.

10. This case obviously is a very bad case of the type in that the Appellant kept repeating the same offences after he had been repeatedly charged within a short period of 4 to 5 months.

11. The Appellant has 6 previous convictions; one for loitering, one for possession of dangerous drug; one for criminal damage and three for theft. Except for the possession of dangerous drug offence when he was sentenced to the Drug Addiction Treatment Centre, in respect of the other offences, he was fined sums of money ranging from $300.00 to $1,000.00.

12. For the offences in question, there is indeed very little that could be said on behalf of the Appellant in mitigation except his pleading guilty to the charges.

13. In her reasons for sentence, the learned Magistrate said following:

"If the Appellant had contested all these charges, they would inevitably have been heard by different Magistrates and the sentences which would ultimately have been imposed would have been well in excess of the 4 years which I could have proposed. By having all eight matters dealt with together by one Magistrate, he has thereby ensured a reduced sentence due to the restraint on the total sentence which may be imposed by one Magistrate. I considered that 3 years immediate imprisonment was the minimum sentence which could be imposed in this matter."

14. Mr Leung, on behalf of the Appellant, suggests that the learned Magistrate was wrong in saying that she could impose a sentence of 4 years imprisonment.

15. There can be no dispute that a Magistrate under section 57 of Magistrate Ordinance can only impose a maximum term of 3 years imprisonment. I do not accept that the learned Magistrate, bearing in mind her experience could have overlooked this matter. I think what the learned Magistrate said in her reasons for sentence simply was that she could have imposed a 4 years imprisonment if she had the jurisdiction.

16. Despite this observation, it still falls upon this Court to consider if the total sentence of 3 years imprisonment appropriate in the light of the background of the case and the way in which the Defendant chose to face the charges in question.

17. A number of authorities have been referred to this Court. It would appear that for an individual charge, a sentence of 9 months to 18 months, depending on the facts of the case, on conviction after trial is considered appropriate.

18. I have observed that this is a very bad case of the type in that the Appellant repeated similar offences within a short period of time and what the Appellant did was an affront to the law. On the other hand, the fact that the Appellant was able to repeat the offences is an indication that the method of the investigation/prosecution of the type of offences in question may be inadequate to properly deal with the situation. Perhaps the prosecution could have brought to the court's attention of the Appellant's repeated transgress of the law while he was on bail with the view to prevent or stop such behaviour.

19. I appreciate that the investigation and prosecution of copyright infringement offences will take time as it involves question of copyright, the owners of which may not be in Hong Kong. It will take time for the law enforcement agent to sort out the question of copyright ownership. But in the situation such as this when a Defendant repeatedly commits offences within a short period of time and if the court's attention is drawn to it, then it is very likely that bail will be revoked and a Defendant such as the Appellant can be prevented from doing what he has done. But this was overlooked in the present case.

20. Despite the seriousness of the Appellant's conduct, I am of the view that the total sentence of 3 years imprisonment is excessive, especially when the Appellant had pleaded guilty to the charges.

21. Although the individual sentence on each of the offences is appropriate, I am persuaded that when the Defendant pleaded guilty to the charges, a maximum sentence permissible either by the relevant ordinance or the jurisdiction of the Court should not be imposed and that a reduction should be made to acknowledge the fact that the Defendant had pleaded guilty and thus save much time and effort. This is the point which in my view has been well established in the case of R v. Kwok Chi Kwan and Anor [1991] 1 HKLR 293.

22. I am of the view that a total sentence of 2 years imprisonment is adequate to reflect the seriousness of the offences in question and the conduct of the Appellant as well as the Court's attitude towards such offences.

23. The Appellant had pleaded guilty to the charges. In deciding to award costs of $5,000.00 on each of charges, the learned Magistrate stated that she took into consideration that the large costs of preparing cases in offences of this nature, and the particular circumstances of this case. She had not elaborated what were the particular circumstances she had in mind. The record of the proceedings indicates that the prosecution had not in fact asked for costs and there was no indication from the prosecution as to the amount of costs involved in the investigation and the prosecution of the offences.

24. In any event, as I have observed in the course of counsel's submission, if the learned Magistrate's approach is correct, then in every criminal prosecution when a Defendant is convicted either on his own plea or after a trial, the award for costs in favour of the prosecution should be made. That clearly is not the practice adopted by Courts in Hong Kong, and I am not of the view that such is a correct approach.

25. Indeed, in my view, an order for costs against the Defendant when he pleaded guilty to the charge should not normally be made. An order for costs should not and could not be made as a mean to impose additional penalty on a Defendant or on any other person. An award for costs should normally only be made when in the opinion of the Court, the way in which the Defendant approaches the investigation and/or the prosecution of the case constitutes an abuse resulting in the prosecution having to incur extra costs which, in the normal course of event, would not or need not be incurred.

26. Of course, this observation is not meant to be a strict jacket approach and an element of discretion or perhaps common sense are called for depending on the facts of each individual case.

27. In my view, there is no valid basis to order the Appellant to pay what can be described as a significant sum of $40,000.00 in costs.

28. In the circumstances, the appeal against the sentences and the order for costs are allowed. The 12 months imprisonment on each of the 7 charges of the copyright infringement and the 6 months imprisonment on the obscene article offences are to stand, but only 2 months of the sentences on the second to the seventh charges of the copyright infringement offences are to run consecutively to the first charge. The 6 months imprisonment on the obscene article charges is also to run concurrently with the sentences on the copyright infringement charges.

29. The Appellant's total sentence is reduced from 3 years imprisonment to 2 years imprisonment. The orders on costs on each of the 8 charges are also set aside.