HKSAR v. CHAN SHU KEI ERIC

HCMA775/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.775 OF 2000

(On Appeal From WSCC 5606 of 2000)

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J U D G M E N T

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1. The appellant was convicted on 18 July 2000 for offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner. He was sentenced to detention in a detention centre and now appeals against his sentence.

2. The facts relied upon by the magistrate were that at about 4:30 p.m. on 15 September 1999, customs officers, in pursuant to an anti-piracy operation, saw the appellant and two other persons sitting at the counter of a shop in Des Voeux Road West, Hong Kong, with them were suspected pirated compact discs. The appellant and another were approached and the counter was searched. Pirated discs were found and the appellant and two others were arrested. Under caution, the appellant admitted that he was packing up pirated compact discs to customers, he knew that they were sold at the price of $20 each and he knew that the discs were infringing copyright.

3. The appellant, being 17 years of age, the magistrate called for a report and detention in a detention centre was recommended. In the cause of giving her reasons for sentence, the magistrate referred to the report and she said this :

"He identified with the delinquent culture like unemployment, drug abuse and earning money by illegal means. From late July 1999, he started selling infringing copies of compact discs at the subject shop. On 1st September 1999, he was arrested by custom officer for a copyright offence. He was granted bail and afterwards as he failed to learn a lesson from his misdeeds, he resumed selling pirated compact discs until he was arrested on the 15th September 1999."

4. Mr Grounds argues that the magistrate, having referred to that incident, took it into account in arriving at the sentence which she passed upon the appellant. He points out to me that the appellant was not charged with that offence, nor was he before the court for it. Therefore, he says it was wrong for the magistrate to take into account a matter not charged before her when arriving at the sentence to be passed upon the appellant. With that I agree.

5. The second matter that I must consider is the present circumstances of the appellant. At the instance of Mr Grounds and upon being referred to HKSAR v. Chow Chak Man & Anor [1999] 2 HKC 659, where Nazareth VP held that a community service order was an alternative to a custodial sentence, I applied for a Community Service Suitability Report in respect of the appellant. The report is favourable to him, it indicates that since his arrest in this matter, he has reformed his behaviour, he has maintained steady employment and has undertaken further education. He has demonstrated sincere remorse. The report recommends that he be placed on a community service order.

6. I am in the fortunate position of having before me material which was not available to the magistrate, and having before me the record of the performance of the appellant from the time he was convicted by the magistrate until now. I cannot say that the magistrate was wrong in the sentence which she passed. It was an appropriate sentence in respect of the information then before her. The information before me, however, entitles me to come to a different conclusion as to the sentence which should be served by the appellant.

7. Having regard to the Community Service Suitability Report, the appeal against sentence is allowed, and in substitution for the detention centre sentence, he is sentenced to 120 hours community service. He is ordered to work and reside as directed by a probation officer; he is ordered to remain at his home address between the hours of 11:00 p.m. and 6:00 a.m. daily; he is ordered to abstain from unlawful use of, or possession of dangerous drugs; he is ordered to submit urine samples as and when directed by a probation officer; and he is ordered to attend such educational and volunteer training programmes as are directed by a probation officer.