HKSAR v. LAM KIN KI

HCMA242/2009
& HCMA243/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 242 AND 243 OF 2009

(ON APPEAL FROM KCCC 1226 AND 1255 OF 2009)

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(HEARD TOGETHER)

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J U D G M E N T

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1.  The appellant was convicted upon his own plea of three charges relating to infringing copies, contrary to sections 118(1) and 119 of the Copyright Ordinance, Cap. 528 (“the Ordinance”).  These three charges arose out of two incidents.  The first two charges were committed on 20 January 2009, when the appellant was found selling one infringing copy and exposing for sale 5,111 infringing copies at Shop 9, Mezzanine Floor, Sino Centre at Nathan Road (HCMA242/2009).  The second incident occurred while the appellant was on bail.  On 4 March 2009, at the same premises, the appellant was caught in possession of 2,044 infringing copies (HCMA243/2009).

2.  In HCMA242/2009, the magistrate adopted a starting point of 6 months for the selling charge and 18 months for the exposing charge.  After giving the appellant the one-third discount for plea, the sentences were 4 months and 12 months respectively.  The magistrate also ordered these two sentences to run concurrently.

3.  In HCMA243/2009, the magistrate adopted a starting point of 15 months for the possession charge.  After giving the appellant the one-third discount, the sentence imposed was one of 10 months.

4.  After taking into account the totality principle, the magistrate ordered 6 months of the possession charge to run consecutively to the 12 months imposed in HCMA242/2009, making a total of 18 months.

5.  The appellant now appeals against the sentence.

ADMITTED FACTS

HCMA242/2009

6.  The admitted facts showed that an undercover Customs Officer went to the shop in question on 20 January 2009 and saw a number of infringing copies of discs on display.  The appellant was touting for business inside the shop, saying 4 discs cost $100.  The officer handed one infringing copy to the appellant and passed over $100.  The appellant put the disc into a bag and gave it to the officer.  The officer revealed his identity and arrested the appellant.  Under caution the appellant said he just worked there for $400 per day.  Other Customs Officers arrived and searched the shop.  The officers seized a total of 5,111 infringing copies exposed for sale in the shop.  The appellant admitted knowing the seized copies were infringing copies and that he had worked in the shop for a week.

HCMA243/2009

7.  On 4 March 2009, an undercover Customs Officer went to the shop in question.  The appellant was then sitting near the cash register.  The officer handed a box of infringing copies to the appellant and asked about the price.  The appellant replied the price for 4 discs was $100.  The officer then revealed his identity and arrested the appellant.  The appellant admitted he was the sales person in the shop.  Another Customs Officer came and seized altogether 2,044 infringing copies.

BACKGROUND OF THE APPELLANT

8.  The appellant is now 55 years of age.  He is a person with some disability (the magistrate noted that he walks with a limp and with the aid of a walking stick).  Before me the appellant is not walking with any walking stick.  He told me his left leg had been amputated and he had a prosthesis.  He can walk without aid but obviously with some disability.  He was receiving public assistance of about $2,100 per month at the time.  He has a string of 28 convictions.  Since 2000, he amassed 11 convictions of possession and publishing obscene articles.

GROUNDS OF APPEAL

9.  The appellant is not legally represented.  He wished to have the sentence reduced.  He said the sentence was too harsh as he did not have similar convictions before.

10.  The 3 offences to which the appellant pleaded guilty to are offences contrary to section 118(1) of the said Ordinance.  Section 119 of the Ordinance provides : 

“A person who commits an offence under section 118(1) … is liable on conviction on indictment to a fine at level 5 [i.e. $50,000] in respect of each infringing copy and to imprisonment for 4 years.”

11.  In the Court of Appeal case of Secretary for Justice v Choi Sai Lok & Another [1999] 4 HKC 334, the court noticed the progressive increase in the penalty for an offence under section 118(1)(d) — i.e. selling an infringing copy — reflecting the escalating gravity of such an offence being viewed.  The court also took judicial notice of the fact that pirated goods posed an enormous problem in Hong Kong and that there was international pressure upon Hong Kong to stamp out the traffic in such goods.  The Court of Appeal ruled that custodial sentences of immediate effect should be imposed for offences of this kind unless the circumstances could truly be said to be exceptional.  For the possession of some 719 pirated discs, a starting point of 12 months was said to be appropriate.  For the possession of a total of 23,507 infringing copies, the correct starting point was one of 18 months.

12.  In the case of HKSAR v Leung Ka Ming HCMA224/2000, the court pointed out the repeated commission of similar offences amounted to an aggravating factor and the offender should not expect or assume that the sentencing court would apply the totality principle to a second offence and reduce the total sentence accordingly.  Committing a further similar offence while on bail is in fact an aggravating factor.

13.  As Keith JA, who gave judgment of the court in the Choi Sai Lok case, said (at page 339) :

“…[t]he open flouting of the law in this trade requires sentences, even for first offenders, to act as a deterrent to others. …”

14.  The appellant is not a first offender at all though it was indeed the first time he sold pirated goods when he was caught in January this year.

15.  Having considered the facts of both cases, the starting point adopted by the magistrate cannot be faulted.  Bearing in mind the fact that the appellant is not a first offender, and that he committed the possession offence while on bail for the other two offences, the total sentence of 18 months is neither wrong in principle nor manifestly excessive.

16.  The appeal against sentences imposed in both cases are dismissed.