HKSAR v. CHAN YAU MING

HCMA1044/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1044 OF 1999

(ON APPEAL FROM TMCC 3048/1999)

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J U D G M E N T

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1. The appellant was charged with two offences. The first one was offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to section 118(1)(e)(ii) and section 119(1) of the Copyright Ordinance, Chapter 528, Laws of Hong Kong. This charge involved 209 CD-ROM discs and 63 game cartridges. The second charge was possession for sale goods to which a forged trade mark was applied, contrary to section 9(2) and section 18(1) of the Trade Descriptions Ordinance, Chapter 362, Laws of Hong Kong. In relation to this charge, a total of 3,261 CD-ROM discs were involved.

2. The appellant pleaded guilty to both charges before the learned magistrate and admitted the facts. The ultimate sentence imposed was six months for each charge, to run concurrently. The appellant sought to appeal against this sentence.

3. The appellant had a clear record and was a father of two children. He had to pay $23,000 per month for the mortgage of his flat in Fairview Park. No doubt, any imprisonment sentence would cause financial problem to the family. Having heard mitigation, the learned magistrate adjourned the sentence pending a Background Report from the probation officer, and he also called for a Community Service Order Report. However, he made the following remark before the adjournment :

"Defendant, I am not making any promises here that you will either be put on Probation Order or Community Service Order will be made. As your counsel said, he's well aware of the fact that normally speaking, people involved in this type of trade go to jail, even first offenders. ..."

4. Regarding the facts of the case, the learned magistrate gave a clear summary in his Reasons for Sentence. What transpired was that on 4 December 1998, two customs officers executed a search warrant against the appellant's shop at Eldo Plaza, Tuen Mun. They found the appellant selling items of infringing discs to customers. They seized the items concerned and further enquiries revealed that the appellant was the owner of the shop.

5. In his Reasons for Sentence, the learned magistrate stated that for the first charge, he took a starting point of nine months. He allowed a reduction of three months to reflect the appellant's plea and clear record. He pointed out that there was no justification to suspend the prison term. He then adopted a similar approach in respect of the second charge. However, he ordered that the two terms were to run concurrently. In adopting nine months as a starting point for the charges, the magistrate acknowledged that the appellant had received a favourable report from the probation officer, and a Community Service Order was recommended. He was keenly aware of the appellant being the sole breadwinner of the family and had a heavy burden in respect of his mortgaged flat. However, the magistrate stated that he was not persuaded that a Community Service Order was appropriate. He considered that a deterrent sentence was necessary, notwithstanding the appellant's clear record.

6. The appellant raised four points in the Grounds of Appeal. It was argued that the nine months starting point was too high, that a credit of more than one-third should have been given, that the recommendation for the Community Service Order Report should be adopted and lastly, that the sentence ought to be set aside on humanitarian ground.

7. Having heard the submissions, I had to say that I agree with the respondent that the starting point of nine months was not too high. The present case involved a substantial number of infringing discs and the appellant was admittedly the owner of the shop. The relevant issues regarding sentence in this type of offence had been fully analysed in the two authorities of Secretary for Justice v. Choi Sai Lok and another CAAR2/1999 and also Secretary for Justice v. Lam Chi Wah CAAR4/1999. The starting point adopted was neither manifestly excessive nor wrong in principle.

8. I would also reject the submission that the magistrate should have adopted the recommendation for Community Service Order. As the respondent had pointed out, the learned magistrate had expressly advised the appellant before adjournment that there was no promise that the court would necessarily place him on probation or community service.

9. In the circumstances, there was nothing wrong for the magistrate to call for the reports, as he did, in keeping the options open before passing sentence. It could not be said that the magistrate was bound to follow any of the recommendations and also it could not be said that the appellant had been misled simply by the calling for the reports.

10. In relation to the one-third discount, counsel for the appellant sought to rely on the case of R. v. Li Wan Kei and Lee Wan Sang CA No.13 of 1997. In the judgment of the court, there was the following remark made :

"... It may be that in other cases in this field if there is a full indication of an intention to plead guilty at the very outset which avoids all the elaborate preparation and expense for trial, this also will be reflected in the sentence passed."

In the context, I do not entirely disagree with the appellant's interpretation of this statement which seemed to suggest that in some cases, a reduction of more than the usual one-third could be given for the guilty pleas, but it could not be taken to mean that in every case, a reduction of more than one-third should be given in respect of this sort of cases.

11. In the present case, the appellant should be entitled to the full one-third discount, but I disagreed that the appellant should be given more than one-third discount. However, it appeared that the learned magistrate did not, in effect, give the full one-third discount as the reduction of three months was said to be a reflection of both the guilty plea and the clear record. If the clear record were to be recognised as a distinct factor in mitigation in this particular case, it should have been dealt with separately from the consideration of the guilty plea.

12. As to the issue of humanitarian ground, counsel for the appellant produced two medical reports which revealed the appellant's condition after being sentenced by the learned magistrate. According to Doctor Tam, the appellant's visual acuity had already been impaired permanently by 15% because of various problems in both of his eyes. The doctor commented that the appellant's eye problem was recurrent and progressive. He stated that follow-up treatment was necessary in order to prevent a sudden and rapid deterioration which could cause blindness. Counsel for the appellant invited this court to reduce the sentence in view of his condition as a humanitarian gesture.

13. The respondent argued, nevertheless, that there was no hardship shown even if the appellant was to serve the six months' imprisonment and that many people who had different medical problems were imprisoned. I could not say I disagree with this analysis. Clearly, in respect of some offences and for some defendants, the sentencing magistrate is entitled to ignore the health condition as a mitigation and afterall, the Correctional Service does provide medical care to those who require treatment. However, I am not sure that in this particular case and in view of the appellant's situation, I should completely ignore his medical condition in that he was under a constant threat of possible blindness.

14. Having reflected on this, I was persuaded that some consideration can be given to this factor. Therefore, for the appellant's clear record and his medical condition, I would reduce each of the two terms by two months and the concurrent order shall stand. Hence, the sentence for the first charge would be four months and the same for the second charge. The terms are to run concurrently. However, I agree with the learned magistrate that there was no justification in suspending the terms. Hence, I would allow the appeal only to this extent.