HKSAR v. WU WEI CHENG

CACC 173/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 1999

(ON APPEAL FROM DCCC 1359 OF 1998)

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

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

J U D G M E N T

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

Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Wu Wei-cheung, was convicted by His Honour Judge Davies in the District Court on 22 March 1999 of two offences, first, possession of obscene articles for the purpose of publication, contrary to s.21(1)(b) of the Control of Obscene and Indecent Articles Ordinance (Cap. 390), the particulars being that he on the 5th day of August 1998 at Flat 1201, 12th floor, Sing Win Factory Building, 15-17 Shing Yip Street, Kwun Tong, Kowloon, in Hong Kong possessed obscene articles, namely 357,679 video compact discs for the purpose of publication. The second charge was for possession for the purpose of trade or business of infringing copies of copyright works with a view to committing an act infringing the copyright without the licence of the copyright owner, contrary to s. 118(1)(d) of the Copyright Ordinance (Cap. 528). The particulars were that he on the 5th day of August 1998, at Flat 1201, 12th Floor, Sing Win Factory Building, 15-17 Shing Yip Street, Kwun Tong, Kowloon, Hong Kong, without the licence of the copyright owner had in his possession for the purpose of trade or business infringing copies of copyright works, namely, 92,242 video compact discs of films with a view to selling them. He was sentenced to 15 months imprisonment on the first charge and on the second, to 3 years, 12 months of which were ordered to run concurrently with the sentence on the first charge, making a total of 3 years and 3 months. He now seeks leave to appeal against sentence having abandoned his application for leave to appeal against conviction which was accordingly dismissed.

2. The facts can in the first instance be stated quite shortly and in that respect are not in dispute. Indeed, all the prosecution did at the trial was to put in the agreed summary of facts which was admitted in evidence under s.65C of the Criminal Procedure Ordinance (Cap. 221). This in effect left the matter to the applicant to establish statutory defences under s.22(1)(e) of the Control of Obscene and Indecent Articles Ordinance and s.118(5) of the Copyright Ordinance respectively. The judge found that neither had been made out and convicted him.

3. The facts that need to be stated are these. On 5 August 1998, the date mentioned in the charges, officers of the Customs and Excise Department, acting under a search warrant, found in the Flat No. 1201 mentioned in the charges, a total of 1,012,335 video compact discs (VCDs) stored in cartons stacked inside the flat. Among these were the VCDs specified in the two charges. The flat belonged to the applicant's sworn sister. The applicant admitted to having rented the storage space from his sworn sister for $12,000. The applicant was not in Hong Kong at the time of the search. Subsequently he wrote on two occasions to the Commissioner of Customs and Excise, asking for the release of the VCDs that had been seized.

4. He is a national and a resident of the Mainland. When he visited Hong Kong in November 1998 he was interviewed in the presence of a solicitor by an officer of the Customs and Excise Department. During this time, under caution he admitted that he had stored "his goods" at his sworn sister's premises. He identified the place where he had stored "his goods" from photographs shown to him by the officer. He mentioned that some of them belonged to a company on the Mainland, and that somebody had entrusted him with conveying the VCDs to the Mainland. His reward, he said, was to be the transportation fees which he would be paid. He also said that he had been employed as a driver and been sent to Hong Kong in the capacity of someone who was not concerned with the transportation of these items, but only to acknowledge receipt of the goods on their delivery to his sworn sister's premises. The latter, the judge noted, was in contrast to his telling the Customs and Excise Department on two occasions that the items were his, and in a later interview that he had been entrusted with conveying the goods to China and would be paid the transportation fees.

5. In sentencing him, having referred to the applicant being a resident of the People's Republic of China, the judge said that the number of VCDs involved was very substantial in each case, and attempts had been made to hide the obscene and infringing copies among a larger amount which was legitimate. He continued:

"To deal with the obscene material first. This trade appears to continue to flourish, even in the face of existing sentences, and obviously by reason of the very large number of items involved in this case was intended to constitute a substantial contribution thereto.

There is no question that an immediate custodial sentence is called for to bring it home to others, both here in Hong Kong and in China, that trade in this type of material will not be tolerated and will invariably result in immediate imprisonment. I take a starting point for sentence of 2 years' imprisonment after trial.

With regard to the offence of possessing material infringing copyright the number involved is again very substantial. This is a type of offence which has become prevalent and which has also become a matter of considerable concern to this community. Clearly Hong Kong's international reputation as a fair trading centre must be protected. Additionally, those who take a legitimate role in this industry and who reasonably expect to benefit from it need support and have their rights protected. I therefore take a starting point for sentence for this offence of 3 years' imprisonment after trial.

This defendant is 39 years old, married with one very young child. It has been quite fairly submitted on his behalf that he has been convicted following his failure to substantiate the statutory defences under these ordinances and that the prosecution's evidence went little further than to prove mere possession on his part, thereby placing the burden of proof upon him which he was unable to discharge."

The judge then came to the following paragraph that assumes considerable significance in the light of the submissions to which we shall turn. He said this:

"In sentencing this defendant I will bear in mind the totality principle of sentencing, the degree of obscenity, which I would place as in the medium range, and the substantial quantities of material involved both in respect of the obscene VCDs and the infringing copies.

Accordingly, for the 1st charge the defendant is sentenced to an immediate term of 15 months' imprisonment, and for the 2nd charge to a term of 3 years imprisonment, 12 months of which will be served concurrently to charge 1 and the balance consecutively, making a total term of 3 years and 3 months' imprisonment."

6. Mr Rupert Spicer, in pursuing the grounds of appeal, confines himself essentially to two main points. The first is pursued on the basis of an additional ground for which he obtained leave before us. It is in these terms: that the judge failed to take account sufficiently or at all that any factors which went to mitigation in respect of the 1st charge and resulted in a starting point of 2 years imprisonment being reduced to 15 months imprisonment, applied equally to the 2nd charge in respect of which the sentence of 3 years imprisonment adopted as the starting point for that charge was imposed in full.

7. The thrust of his submission can be seen from the following comparisons he made. In charge 1, the obscenity charge, there were 357,679 VCDs. In the 2nd charge, only 92,242. The maximum in sentence on the first charge was 3 years, and on the second, 4 years. The actual sentences imposed were 2 years on the first, and 3 years on the second. The 2-year sentence was reduced to 15 months while the 3-year sentence received no reduction at all.

8. Mr Spicer submits that having regard to the quantities and the criminality, there is a disparity which is required to be removed by according to the applicant a substantial reduction from the starting point of 3 years on the 2nd charge.

9. It has to be said that at first sight, it is difficult to see what reason there can be to justify the divergent results. That is not made any the easier by having to assess the relative criminality of offences so different in kind and the nature of the mischief with which they are concerned.

10. Fortuitously, at the end of the day, the answer seems to us to be found in the penultimate paragraph of the judge's reasons to which we have already drawn attention. It is quite clear from this that the judge came in the end to address the totality of the sentences. Having taken everything into account, he decided that the total sentence should be 3 years and 3 months, a substantial reduction from the 4 years and 3 months which the sentences would come to, if they had to be served consecutively to each other. In the light of that totality, which we think is unexceptional, the only view that can be taken of the sentence of 15 months, which is far from easy to explain, is that this was the judge's way of achieving his ultimate totality, or that in any event it was taken fully into account together with the sentence of 3 years in the total sentence imposed. Upon that basis, whatever view one takes of the ultimate individual sentences, there can be no quarrel with the reduced totality here. So that the net result would be the same; any reduction in the sentence on the 2nd charge would have been offset by a corresponding increase upon the 1st charge.

11. Upon that basis, we can see no reason to interfere with the sentence on the 1st ground.

12. Mr Spicer's second ground was that the overall sentence was manifestly excessive and wrong in principle. We can say quite shortly here, as we have already indicated, that we do not accept that the reduced totality is manifestly excessive.

13. Mr Spicer has urged upon us that the role of the applicant was that of a transporter or a person who took a minor role, and was not an organiser. But simply to regard him as a transporter would not do justice to the facts which showed quite clearly that he had not only arranged transportation for the very large quantity of VCDs, and procured the storage space from his sworn sister, but also that he was significantly knowledgeable in some of the information he gave to the Customs and Excise officers; in addition he himself regarded the VCDs as his discs. Clearly, he played a role that was significantly greater than that of a mere transporter. In the light of that, the starting point of 3 years against a maximum of 4 cannot be regarded as manifestly excessive, nor can the end result of 3 years and 3 months.

14. In those circumstances we do not regard the sentence as manifestly excessive nor do we see any error of principle. The application for leave to appeal against sentence is accordingly refused.