HKSAR v. LEUNG MAN BIU

[English Translation]

HCMA 524/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 524 OF 2000

(ON APPEAL FROM SPCC 694, 785, 1890-1 AND 1898-1900 OF 2000)

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JUDGMENT

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1. In seven cases before the San Po Kong Magistracy, the appellant pleaded guilty to a total of seven charges of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to s.118(1)(e)(ii) and s.119(1) of the Copyright Ordinance, Cap. 528 of the Laws of Hong Kong, and one charge of selling infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to s.118(1)(e)(i) and s.119(1) of the same Ordinance.  He was sentenced to imprisonment for a total of 34 months.  He now appeals against sentence.

2. In all of the seven cases mentioned above, the appellant was found touting pirated compact discs during anti-piracy operations conducted by Customs officers.  Four of these cases took place at a shop in a shopping arcade, while the other three took place at a roadside stall in Yau Ma Tei.  The appellant had previously admitted that he was the owner of both the shop and the stall, but at trial he claimed that he was only a shop assistant and a hawker.  In considering sentence, the magistrate detailed the number and the estimated value of the pirated compact discs involved in these seven cases.  In his calculations, the total number of pirated compact discs involved in the seven cases exceeded 10,000, with an estimated total value in excess of $180,000.  The magistrate carefully considered the appellant’s personal and family background, the Drug Addiction Treatment Centre Suitability Report and the mitigation submitted by the defence.  The magistrate also took into account the nature, prevalence and seriousness of this type of offences as well as the observations made by the Court of Appeal in the case of Choi Sai-lok.  The magistrate noted, and I agree, that the Court of Appeal in that case did not lay down any guideline but considered 18 months’ imprisonment to be an appropriate starting point for this type of offences.

3. Furthermore, in passing sentence, the magistrate referred to many other cases and took into account the number of compact discs involved.  I agree that the number of pirated compact discs involved is undoubtedly a significant sentencing consideration.  However, the court should not attach too much weight to it.  This is because cases of copyright piracy usually involve a large quantity of compact discs and, having uncovered the offences, the Customs and Excise Department (“CED”) has to spend considerable time on establishing that the discs have been put on sale without the licence of the copyright owner.  To avoid the delay that this may cause, the CED has recently taken the approach of prosecuting only on those seized compact discs which are confirmed to have been put on sale without the authority of the copyright owner, and producing the remaining suspected pirated copies at trial for mere reference.  Generally speaking, the number of compact discs suspected to be pirated copies often exceeds that of the confirmed pirated copies, because the very time-consuming exercise of verifying whether or not the seized compact discs are infringing copies is not carried out.  For these reasons, the sentencing court should not focus only on the quantity of pirated compact discs involved or the number of offences or cases against the defendant.  The court should also consider relevant circumstances including the role of the defendant; the nature of the piracy; whether the defendant was an employer, employee or hawker; and whether the piracy was carried out blatantly and in crowded public locations.

4. The appellant’s ground of appeal is that he has come across someone in prison who has been charged with seven or eight similar offences but has received a sentence lighter than his.  In the present case, the facts showed that although the appellant had no previous similar conviction, his began to commit the present offences on 21 March 1999, and the offences were continued on six further occasions on 18 May, 16 July, 3 August, 13 December, 27 January 2000 and 10 February 2000.  It can therefore be seen that the appellant had, within the 11 months from March 1999 to February 2000, repeatedly committed and been arrested for the same offences seven times.  He was not deterred by each arrest, showing a complete disregard of the law.  As he himself submitted, Charges 1, 2 and 5 to 7 were committed at the same location.  This is a valid sentencing consideration because it shows that the appellant not only repeated the offences despite each arrest, but also did so in the same district once and again.  Such a flagrant defiance of the law constituted an aggravating factor which called for an increase in sentence.  The magistrate adopted a starting point of 18 months for each offence and reduced the term by one-third to 12 months for the guilty pleas.  He also considered the totality principle and held that parts of the sentences were to run consecutively, namely, 6 out of the 12 months for Charge 2, 5 months for Charge 3, another 5 months for Charge 4, and 6 months for Charges 5 and 7.  The total term of imprisonment was therefore 34 months.

5. Having considered the individual sentences imposed on the appellant and the totality principle, I am satisfied that the magistrate was correct in respect of both the individual sentences and the overall sentence.  I have also taken into account the aggravating factors in the present case.  The sentence to be served by the appellant is in fact more or less the same as that imposed on other prisoners.  For these reasons, I hold that the sentence imposed by the magistrate was neither wrong in principle nor manifestly excessive.  The appeal is dismissed accordingly.