HKSAR v. CHAN WING TIM

HCMA540, 541 & 542/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.540, 541 & 542 OF 2000

(ON APPEAL FROM NKCC NOS.832, 907 & 1409 OF 2000)

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J U D G M E N T

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1. The appellant was convicted of three offences of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner. The first was NKCC No.1409 of 2000 in respect of an offence on 16 April 1999 in shop premises involving 3,205 infringing discs; the second case was NKCC No.907 of 2000 in respect of an offence on 24 April 1999 in shop premises involving 2,695 infringing discs; and the third NKCC No.832 of 2000 in respect of an offence on 20 July 1999 in shop premises involving 1,214 infringing discs. In each of the three cases, the appellant pleaded guilty when the charge was put to him and agreed the brief facts in respect of each case. He was convicted upon his own plea. He now appeals the sentences passed upon him.

2. The sole ground of appeal is that in considering case of NKCC 907 of 2000, the magistrate took as a starting point 10 months' imprisonment to which he added 2 months for the aggregating feature that that offence was committed while the appellant was on bail for NKCC No.1409 of 2000. In fact, the learned magistrate was in error. Whilst the appellant had been arrested on 16 April 1999 in respect of that offence, he was taken back to Mongkok Police Station where under caution he admitted the offence. He was warned and released unconditionally. He was, therefore, not on bail when the second offence was committed on 24 April 1999, and it was inappropriate to add a period of 2 months' imprisonment as an aggravating feature of the second offence.

3. The third offence, NKCC No.832 of 2000, committed on 20 July 1999, was committed whilst the appellant was on bail of $8,000 in respect of the offence committed on 24 April 1999. No complaint can be made that the magistrate considered that fact as an aggravating feature in his sentence in respect of that offence.

4. Accordingly, this appeal must be allowed to the extent that the sentence in respect of NKCC No.907 of 2000, being HCMA 541/2000 is allowed to the extent that the sentence of 8 months' imprisonment is reduced to one of 6 months' imprisonment. The magistrate's view of the overall totality of the offence, given the number of the discs involved, is appropriate, and I see no reason to disturb the totality. In all other respects, the sentences and orders made by the learned magistrate stand. It is only to the extent that I have set out above that the appeal is allowed.

5. The appeal in respect of HCMA 540 and 542 of 2000 are therefore dismissed.