HKSAR v. POON MEI FUN

HCMA559/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.559 OF 2002

(ON APPEAL FROM ESCC 3965 OF 2001)

-------------------------

-------------------------

-------------------------

J U D G M E N T

-------------------------

1. On 27 August last year, officers of Customs and Excise visited the Oriental Shopping Centre, 188 Wan Chai Road. I am afraid these premises are now achieving something of a reputation for the sale to the public of counterfeit VCDs and DVDs, and frequently, VCDs of an indecent nature are also on offer.

2. When they got to Shop C03 on the Ground Floor which were premises where CDs and the like were available for sale, they found this appellant seated next to the cash till and they asked her whether she had a copy of a particular film. She said she did, and offered to sell them a copy. They then identified themselves and she was arrested on suspicion of having committed an offence, contrary to sections 118(1)(e)(ii) and 119(1) of the Copyright Ordinance, Cap.528, which is the offence of exposing for sale infringing copies of copyright works for the purpose of, and in the course of, or in the connection with any trade or business without the licence of the copyright owner. They then searched the premises and found that there were 15 such infringing CD-ROMS - although there were also over 100 others which were in fact suspected of being pirated copies although, the prosecution, was unable to prove that to the required standard, and so, the charge only relates to 15 copies.

3. The appellant was then taken to the Eastern Magistrates' Court where she was tried by Mr Dufton, having pleaded not guilty. He convicted her, called for a probation officer's report and having had regard to everything that was said to him, he felt constrained to pass an immediate sentence of six months' imprisonment. The appellant initially appealed against both conviction and sentence. She was then admitted to bail by Beeson J after she had served 54 days of her sentence. Very recently, she has served a notice abandoning her appeal against conviction, and an order has already been made dismissing that appeal. So this then leaves over her appeal against sentence.

4. In submitting that the immediate sentence of six months' imprisonment was far too severe in all the circumstances, Mr Raymond Yu, who appears for the appellant, has drawn my attention firstly to the fact that here we are really considering a rather minor version of this offence in the sense that there are only 15 offending copies. But Ms Leung, on behalf of the prosecution, makes a perfectly good point that these commercial operators are now probably keeping most of their stock not at the shop premises but at nearby warehouses and the court perhaps ought to bear that in mind when faced with this sort of commercial enterprise. I think that is a fair point to make, but always against the background that the appellant was sentenced in respect of only 15 copies; so there is something to be said on both sides of the argument.

5. I consider that Mr Yu's best point is the fact that this appellant who is now just 21 years of age and from the report prepared by the probation officer, is clearly a good sort of individual, she is a family girl, living at home with her family, she did very well at school, certainly above average and she had hoped to save up money to go and study abroad. She has always led a perfectly decent sort of life. Although she does not enjoy the best of health, I do not think her health is something that really would have any impact on the outcome of the appeal.

6. What Mr Yu submits is that she found herself in this situation rather foolishly. She went there in order to help out her friend and she was arrested in the course of doing that. She was not employed there in any full-time sense. And perhaps it is a very great shame in this matter that she did not have the courage and good sense to admit her guilt before the magistrate, because by dealing with the matter in the way that she did, she, in effect, threw away much of the good mitigation that was available in her case. Now on appeal Mr Raymond Yu submits that at least, albeit late in the day, she has accepted her guilt and has abandoned her appeal against conviction, and I suppose he is right, that does indicate, albeit very late in the day, her remorse.

7. Attention has rightly been drawn to the case of Choi Sai Lok [1999] 4 HKC 334, where it was said that the judge who imposed a sentence which did not result in the immediate imprisonment of the defendant was wrong to have done so and the Court of Appeal took the view that in the usual sort of case defendants who engage in these sort of offences should expect sentences of immediate custody, even young offenders with no previous convictions. Not surprisingly, therefore, in responding to this appeal, Ms Leung draws attention to that and also to the decision of Leonard J in R v. Ng Wai Ching, MA 1306/96, unreported, in which he considered the position of a salesman, and had this to say :

"... Experience has shown that they are not deterred by fines, so that resort needs to be had to a custodial sentences, even where the offender is a young person with a clear record."

Those comments were approved by the Court of Appeal in Choi Sai Lok.

8. Faced with this situation, Mr Yu seeks to distinguish the position of this appellant from the sort of individual that the court in Choi's case was dealing with. Here, the number of CD's concerned is very modest. The individual herself is someone of excellent character, and I agree with that assessment of her, and that is what one gets from the probation officer's report. Mr Yu also draws attention to the fact that for this type of person the 54 days' in prison must have come as a very hard shock.

9. Since her admission to bail, she has found herself work as a receptionist at a motor company, and I have seen a testmonial from the manager who speaks well of her, describing her as hard working and responsible. She is also doing private tutoring in the evenings and the people who employ her have also spoken very well of her.

10. I take the view that this is a case where one can legitimately take a course which results in her retaining her liberty. I am very conscious of the fact that these offences are a particular problem in Hong Kong. There is a lot of this going on on a commercial basis. The reputation of Hong Kong is at stake and the Court of Appeal has indicated that these sort of offences should usually be visited with prison sentences, frequently well in excess of the six months' imposed by the learned magistrate in this case. I have got to bear all of that in mind, which I have, but I also have to bear in mind the individual who is before the court and I accept that her involvement was minimal. I proceed on the basis that she was really only helping out briefly, and that in all the circumstances, the magistrate was, on this occasion, unduly harsh and did not pay sufficient attention to all of these factors.

11. Accordingly, I am going to impose a sentence of six months' imprisonment, but I am going to suspend that for two years, and so, to that extent, this appeal must be allowed. (Suspended sentence explained to the appellant.)