HKSAR v. WU PAK CHEUNG

HCMA261/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.261 OF 2002

(ON APPEAL FROM NKCC 7337 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence only, the appellant having abandoned his appeal against conviction before me and it having being dismissed.

2. The appellant was convicted after trial of an offence of possession of some 1,400 CDs and VCDs, being infringing copyright works, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap.528. He was sentenced to 18 months' imprisonment. The appellant says that sentence was too severe.

3. The facts of the case, as found by the magistrate, were that the appellant had been caught in the act of assisting his co-defendant with the transporting of 1,400 infringing discs on a trolley from a room where another large quantity of discs were subsequently found. The co-defendant, who absconded before trial, had possession of the keys to the room and was the individual actually pushing the trolley. The appellant was found walking beside him carrying remnants of the cardboard the infringing discs had earlier been packed in.

4. Mr Ip, who appears for the appellant before me but who did not represent him at his trial, argues two grounds of appeal. For convenience I will approach them out of order.

5. The first complaint I will deal with is that the appellant, at trial, agreed the whole of the facts of the prosecution case and elected to give no evidence. The trial therefore, including submissions, took approximately one hour.

6. Mr Ip says that while it is true that the appellant did not plead guilty, the fact that his then counsel on his instructions agreed so much of the prosecution evidence and therefore took up so little of the court's time is a matter which should have resulted in some mitigation of sentence.

7. In R. v. Vy Van Kien and Pham Van Hoa (1999) 1 HKLR 422, Penlington JA said at 427D that the questions to whether the saving of time and public expense represented a mitigating factor was essentially something for the sentencing magistrate to determine. That must be right. It may well be that a considerable shortening of the length of the trial of an offender by way of that offender agreeing much of the prosecution case can be a proper basis for mitigating his sentence when convicted.

8. But as said by Penlington JA, it is essentially a matter for the trial judge or magistrate. That is because the cooperation of an offender given at trial may well depend on a wide range of factors. For example, it may be that the prosecution evidence is effectively unchallengeable, such as often occurs in cases involving primarily banking documentation, or it may be, as seems to be the present case, that an offender presents his defence by way of an explanation contained either in his evidence or in a cautioned statement made by him to the police, or both, so that there is no challenge to the prosecution evidence.

9. Accordingly, there are a very large range of circumstances by which an offender's case may be shortened at trial. Another consideration, which is perhaps relevant to the present case, is as to what degree the shortening of the trial really represents any substantial saving of time and resources so far as the overall preparation of the case for trial is concerned.

10. It may well be, for example, that considerable expense and effort has gone into the preparation of the case well before trial. That is often the position with a prosecution case, such as the present, so far as copyright offences are concerned.

11. For these reasons, it is very much a matter for the sentencing court's discretion as to whether to allow any mitigating weight to the evidentiary agreements entered into by an offender during trial. That is a discretion not lightly to be interfered with.

12. In the present case, the sentencing magistrate gave no discount in sentence because of the appellant's evidential agreements having shortened the trial. He was entitled not to given the nature of the case. This ground of appeal cannot succeed.

13. I turn now to what is perhaps the appellant's primary ground of appeal.

14. Mr Ip says the sentence of 18 months' imprisonment is manifestly excessive on the bases of the leading case of Secretary for Justice v. Choi Sai Lok (1999) 4 HKC 334. In that case, the facts were somewhat similar to the present. Two offenders were seen carrying cartons containing infringing discs.

15. The first offender was found to have been transporting 700 odd discs. The other offender carried a slightly lesser number of discs but possessed keys to a room where some 21,000 discs were found.

16. The first offender, as is the case with the present appellant, was charged only with possession of the discs he was found to be transporting. The second offender, as he possessed the keys to the room where the very large number of discs were found, was charged with possession of those discs as well. Both individuals, particularly the first offender, performed substantially the same role as the appellant in the present case. In the words of Keith JA in Choi Sai Lok :

" ... The roles played by storemen, packers, delivery men and salesmen may be different, but we do not see much difference between them in terms of criminal culpability. What will justify differences in sentences between them will be, for example, the number of infringing copies involved, the length of time in which they had been engaged in the trade and factors personal to them such as pleas of guilty."

17. Keith JA went on to say that the appropriate starting point of sentence for the first offender in that case was a sentence of 12 months' imprisonment and for the second offender, i.e. the offender charged with possessing of the larger number of discs, was 18 months' imprisonment.

18. It seems plain that so far as the present case is concerned the role played by the appellant is no greater than that of the offenders in Choi Sai Lok. While it is true that there are no guidelines for sentences in respect of these offences, consistency in sentencing is desirable.

19. The only distinguishing feature in the present case, given the role of the appellant and his relatively minor criminal record regarding this sort of offence, is the number of discs he was found to possess. In my view the number of discs possessed by the appellant falls well short of the 21,000 or so possessed by the second offender in Choi Sai Lok which was thought to warrant a starting point of sentence of 18 months' imprisonment.

20. It seems to me that the culpability of the appellant falls somewhere between the two offenders in Choi's case, because of the number of discs he possessed, and that therefore the sentence imposed on the appellant should have reflected that, in the absence of any reasons stated by the learned magistrate to do otherwise.

21. In HKSAR v. Wong Yiu Ming, HCMA1247/2000, Longley DJ thought that for a quantity of 1,600 infringing discs, the starting point of sentence of 18 months' imprisonment taken by the trial magistrate was too high on the authority of Choi Sai Lok and reduced that to a starting point of 15 months' imprisonment.

22. In my judgment, given the quantity of infringing discs the subject of the present case, the appropriate sentence was 15 months' imprisonment after trial.

23. Accordingly, the sentence of 18 months' imprisonment is set aside and substituted by a sentence of 15 months' imprisonment.