HKSAR v. CHAN NAI MING

TMCC 1268/2005

HONG KONG SPECIAL ADMINISTRATIVE REGION

IN THE MAGISTRATES' COURT AT TUEN MUN

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REASONS FOR SENTENCE

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1.  I must say this first of all: that Hong Kong carefully guards intellectual property rights.  These rights are not illusory, they are not something which exists only in theory and not in practice.  They are real, they are valuable and they amount to genuine property.  And the owners of those rights are entitled to the same level of protection from dishonest appropriation as the owners of ordinary, more tangible property.  What is created by or on behalf of the owners of copyright is theirs to deal with and dispose of as they choose. It is not up to others to dictate how they should do so or at what price. It is not open to others to make moral judgments about the price of a book or a DVD or a music CD, and claim that it is excessive, as some form of justification for infringing the copyright.  The law does not accord any validity to such attempts to justify copyright piracy.

2.  The practical application of this principle, when the courts are dealing with persons who criminally infringe copyright, is to apply a firm, deterrent based sentencing policy. This is nothing new.  There are many decided cases of higher courts which have, time after time, affirmed this approach.  In particular, in 1999, in a case called Choi Sai-lok, the Court of Appeal approved the comments of a judge in an earlier case when he said, “The victims are the proprietors of the intellectual property whose rights are being violated.  There is international pressure upon Hong Kong to stamp out traffic in pirated goods.  Failure to attack th[is] illegal activity … would be perceived as a default on the part of the government on its international obligations.”

3.  This provided the foundation for the  approach of the Court of Appeal in Choi Sai-lok because it went on to say, “We emphasise that custodial sentences of immediate effect [i.e. not suspended sentences] should be imposed for offences of this kind unless the circumstances can be said to be truly exceptional … The open flouting of the law in this trade requires sentences, even for first offenders, to act as a deterrent to others.”

4.  The result of these cases, and the many decisions made thereafter, is that immediate sentences of imprisonment of 6 to 12 months are generally imposed on offenders who trade in infringing copies, particularly those who sell infringing CDs or DVDs which have been manufactured on a commercial scale.  The exact sentence will depend on the scale and circumstances of the offence and the age and circumstances of the offender.

5.  It is to be emphasised that the courts were there dealing with those who make money out of infringing copies. There is no evidence in this case of any monetary or other commercial gain and in that sense, there is a distinction to be drawn. 

6.  The bulk of the cases concerning the commercial distribution of infringing discs relate to section 118(1)(d) of the Copyright Ordinance, Cap. 528.  The convictions of this defendant fall under section 118(1)(f) of the Ordinance and are expressly defined, by virtue of that sub-paragraph, to be offences committed “otherwise than for the purpose of, in the course of, or in connection with, any trade or business”.

7.  Thus the criminal conduct of the defendant was non-commercial.  There was no element of trade or business in it.  It was the attempted distribution of infringing copies of copyright works with out any element of personal financial gain but to an extent where the owners of the copyright were prejudiced.

8.  It is appropriate to summarise the relevant acts of the defendant.  I do not intend to repeat the description given in my reasons the verdict of the BitTorrent system.  It is by now well known as a means by which  large digital files, such as films, can be quickly, efficiently and widely distributed from one computer to many others by means of “packet switching”.  In relation to each of the three films which are the subject of the three charges, the defendant was the seeder.  He loaded the films into his computer using genuine, non-infringing DVDs.  That act created a copy on the computer which was an infringing copy.  From the digital file, in which each film was stored, the defendant created .torrent files, along with images of the inlay cards, imprinted with his logo, a statuette; he then published the existence of the .torrent files and the names of the films on a BitTorrent newsgroup to which anyone with a computer linked to the Internet could gain access.  The purpose of that was to tell others interested in obtaining the film where they could go to download it using BitTorrent system.  The defendant activated his .torrent files and maintained his connection to the internet:  he retained control of the seeder computer at all times.  If the defendant had not maintained his Internet connection, others would not have been able to connect through the appropriate tracker-server to download the films. I emphasise that the defendant was the original uploader, he was not a downloader.

9.  In each of these cases, during the course of the investigation, 35 to 40 users commenced downloading.  Some, including the customs officer monitoring the activities, obtained complete copies of the films through the BitTorrent system.

10. This was, as I have found, at least an attempted distribution of the infringing copies to such an extent as to affect prejudicially the owners of the copyright.  It was done in a public, open forum where anyone with the appropriate equipment could download.  It is proper to infer that some copies of films obtained by downloaders in this manner would themselves be downloaded to others.  The potential for prejudice to the copyright owners by this latent risk of re-distribution, beyond those who initially take the seeded film, is extensive. 

11.  It is to be noted, in that context, that while this is a non-commercial distribution, the offence created by this sub-paragraph of the sub-section is bracketed together with the commercial offences in the other sub-paragraphs and it carries exactly the same maximum sentence.  The legislation draws no distinction in gravity between these different offences involving the misuse of infringing copies: commercial or non-commercial activities render an offender liable to a maximum of four years’ imprisonment.  This can only be because the gravity of the offences is measured by the harm caused to the victim rather than by the gain made by the offender.

12.  In my judgment, the absence of commercial motives is of limited significance in assessing the seriousness of the offence and the appropriate penalty.

13.  It might be said that the films the subject of these charges were not recent releases; they were not current blockbusters and may never have fallen into that category.  But that is a value judgment which is which it is not open to me to make.  It is not for a court to assess the quality of the material in question.  It might in some circumstances be an aggravation where a newly released film is quickly pirated and distributed using BitTorrent.  However, the present films could be purchased at a DVD shop and this aggravation is not present.  But neither is it mitigation.

14. BitTorrent is a relatively new system of distribution.  The potential for its growth and development is obviously vast.  In my judgment, it would be entirely wrong for the firm approach of the Hong Kong courts, which I have earlier described, to be diluted.  Such a course would substantially undermine the protection against copyright piracy which is afforded by the law.

15. I turn to the circumstances of this case which involves the attempted distribution of three films to the prejudice of the copyright owners.  I note the following:

(a) The defendant and those with whom he associated through the BitTorrent newsgroup, were fully aware of the criminality of uploading films through BitTorrent.  One only has to look at the e-mails sent out by the defendant under his pseudonym, Big Crook, to see that on the 30th December 2004, nearly 2 weeks before the present offences, he was referring to others who were suspected of using BitTorrent to download being used to assist Customs investigators.  There are e-mail references to customs regarding the defendant as a “target person” who should go into hiding.

These e-mails, and others, show that this was not a group innocently or naively sharing copyright materials amongst themselves without realising the potential for criminal proceedings.  They knew.  The defendant knew.  Yet he carried on to seed the films the subject of the charges, distributing them to anyone who cared to look for them.

(b) At the same time, it must be recognised that there have been no previous criminal prosecutions of BitTorrent offences in Hong Kong, and perhaps none anywhere else in the world.  There is not therefore a body of public knowledge in Hong Kong that the use of BitTorrent in this manner will result in deterrent sentences being imposed in the same way as for commercial distribution of infringing copies

(c) For the reasons to which I have already alluded, the distinction between the manufacturer or distributor of infringing discs and the BitTorrent seeder is not great.  The use of the Internet to distribute infringing copies is insidious. It is unseen, difficult to detect and virtually impossible to prevent in a free society.  An illicit factory or warehouse can be closed.  Infringing DVDs can be destroyed.  The Internet cannot be shut down: its very essence is the free distribution of material.  But that does not mean that it cannot be used for unlawful or criminal purposes.  And its use in that regard is difficult to control save by deterrence.

(d) The message has to be sent out by courts that the distribution of infringing copies, to the prejudice of copyright owners, particularly by seeding films onto the Internet, will not be treated leniently.    I treat the figures for BitTorrent distribution, given to me in court, with great caution:  they appear to be estimates and I have not been provided with the basis for their calculation.  I place no weight on them.  But it is nevertheless obvious that the potential for damage to the film industry is huge. It would be irresponsible of the courts not to recognise that.  If those contemplating the seeding of films on to the Internet by BitTorrent think that they will be able to get away with no more than a slap on the wrist, the resulting harm to the enforcement of copyright would be substantial and far reaching.

(e) This defendant is to be treated as a man of clear record.  Despite the handle which he rather flippantly adopted, he is not a bad man, he is not a big crook.  He is an ordinary family man with the usual family responsibilities who has used his undoubted knowledge of the Internet, and the time he had available when he was unemployed, for illicit purposes.  He is now gainfully employed and providing for his family. I am not surprised that he has been assessed as suitable for community service.

(f) The defendant does not have the mitigation plea of guilty.  It is no aggravation that he fought the case and it is to be noted that he admitted a substantial amount of factual material which would otherwise have been cumbersome to prove.

(g) I agree that some account should be taken of the fact that this is the first prosecution of its type.  But I am bound to say that I do not see great differences in terms of harm to copyright owners between this sort of conduct and the distribution of infringing discs.  Neither is there any distinction to be drawn from the fact that these were attempts rather than completed offences. 

16.  These then are the factors to which I have regard.  I do not consider that this is a case which is suitable for community service despite the defendant’s own suitability.  A sentence of imprisonment is imperative.  There is no basis for suspending such a sentence.  The fact that this is the first such conviction does not amount to the exceptional circumstances which would be required to justify such a suspension.  Nevertheless, I do make some reduction in the term to reflect the fact that it is the first such conviction.

17.  I make the sentences concurrent on each charge.  The sentence I impose is one of three months’ imprisonment.

18.  But, let future offenders be warned: I cannot bind any court dealing with them;  and they might expect greater terms to be imposed, perhaps not very different to those handed down to sellers of infringing discs.

19.  The case to which I have referred are:

Secretary for Justice v Choi Sai-lok, [1999] 4 HKC 334

R v Ng Wai-chin, HCMA 1309/1996