R. v. CHIU YAT HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 208 OF 1996

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

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

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

J U D G M E N T

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

1. The Appellant pleaded guilty before a magistrate to the offence of Possession for the Purpose of Trade or Business of Infringing Copies of Sound Recordings in which Copyright subsisted, contrary to s.5(1) of the Copyright Ordinance, Cap.39. On 3rd November 1995 police officers found the Appellant manning a mobile hawker stall with 100 numbers of copyright infringing compact discs for sale outside No.19-21 Jordan Road Kowloon. He admitted that the compact discs were for sale at 3 for $100 to customers.

2. He was sentenced to detention in a Training Centre after the magistrate considered reports from the probation officer, the Young Offender Assessment Panel, the Training Centre and the Detention Centre.

3. He now appealed against sentence.

4. The Appellant was born on 18th February 1978. He was 17 on the date of the offence. He had three previous convictions for burglary, breach of probation order and an offence similar to the present one. He committed the first offence when he was 14 years old and was put on probation. He breached that probation order and was sentenced to a detention centre. For the similar conviction he was fined $1,000.

5. The magistrate in his reasons for sentence referred to maximum sentence for conviction on indictment of such an offence which included a fine and imprisonment for 2 to 4 years depending on whether it was a first or subsequent conviction. But the maximum for summary conviction remained at 2 years imprisonment and a fine of $100,000.

6. The magistrate referred to s.109A(1) of the Criminal Procedure Ordinance which provides that no offender between the age of 16 and 21 years, shall be sentenced to imprisonment unless there is no other way of treating them. The magistrate indicated that the reports did not recommend probation and detention in a Detention Centre. Only the Training Centre report recommended that a period of detention for educational and vocational training followed by a period of supervision would be of benefit to the Appellant and based on this, the Appellant was sentenced to detention in a Training Centre.

7. Mr Wong Po Wing for the Appellant submitted that the Appellant was only 14 when he committed the first offence and he had been recalled after his discharge from Detention Centre. In June 1995, after his second discharge, he had behaved himself. The Probation Officer reported that he had become more mature and worked as a illegal worker.

8. Mr Wong submitted that the magistrate appeared to have followed the reports when passing sentence. But the sentence was excessive having regard to similar cases. He referred to R. v. Wong Kam Ming MA 95/1990 where Pennington JA, although agreeing that this type of offence presented a problem and those engaged in it must be adequately deterred, indicated that the sentence must be appropriate to the offence. In that case the defendant was 19 years old and had previous convictions of theft. He pleaded guilty to 10 counts of possession of false trade mark commodities with a total value of $59,000. Pennington JA reduced the substantial fine of $103,000 to one of a 3 months imprisonment suspended for 2 years and a total fine of $11,000.

9. Mr Wong also referred to R.v. Lo Hok Yee MA 107/1992 a sentence of 9 months imprisonment for possession of 182 pornographic tapes was reduced to one equivalent to one month and for the copyrights offences, he was fined $5,000 on each charge. Mr Wong submitted that for such offences, the courts recognised a short period of imprisonment was appropriate. He also submitted that the magistrate approached the present case not because of the nature of the offence, but because of the Appellant's past convictions.

10. It appears that the magistrate felt being bound by the reports when the Appellant was sentenced to a Training Centre. These reports did not recommend a shorter treatment because of the Appellant's past criminal record. The approach must be the sentence should commensurate with the offence and an offender is not to be sentenced for his past convictions. The Appellant was 17 years old and the number of compact disc was 100 with a total value of around $3000. He pleaded guilty at first instance and he had been behaving himself since his discharge from the Detention Centre.

11. The normal sentence for an offence of this nature where the quantity of infringing articles is not substantial, on the authorities, would be one of a fine and/or a short period of imprisonment. Having regard to the number of compact disc was 100 and its value of around $3,000, and the Appellant having been detained for more than three months in the Training Centre, justice will be seen to be done if the sentence of training centre is set aside and a fine substituted. The appeal is therefore allowed. The Training Centre Order is set aside and a fine of $3000 is substituted.