R. v. TSOI CHI KIN and Another

IN THE COURT OF APPEAL

1997, No. 42
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. These are applications for leave to appeal against sentence. They come to us from proceedings before Deputy Judge Day in the District Court on January 2 this year.

2. The 1st applicant is a man in his early 20's. And the 2nd applicant is a man in his late 20's. Both were of previous good character.

3. All the charges which they faced were brought under the Copyright Ordinance, Cap. 39.

4. The 1st applicant pleaded guilty to two charges. They were the 1st and 2nd charges. Both were of possession for the purpose of trade or business of infringing copies of literary works in which copyright subsisted, contrary to s. 5(1).

5. As for the 2nd applicant, he pleaded to three charges. They were the 2nd charge, which we have just mentioned, and the 3rd and 5th charges. The 3rd charge was also laid under s. 5(1). And the 5th charge was of possession of plate, contrary to s. 5(2).

6. The 1st applicant was sentenced to a total of nine months' imprisonment by way of concurrent terms of that duration. On each charge, the judge started at 15 months, and then gave a discount for the 1st applicant's guilty plea and clear record.

7. As for the 2nd applicant, the judge sentenced him to 10 months' imprisonment on the 2nd charge. A starting point of 18 months had been taken. And then a discount was given for the 2nd applicant's guilty plea and clear record. On the 3rd and 5th charges, fines of $4,500 and $5,500 respectively were imposed. The 2nd applicant does not complain about either of those fines.

8. Both men seek leave to appeal against their prison sentences.

9. Referring to the 1st applicant as "D1" and to the 2nd applicant as "D2", the judge said this about the 1st applicant:

"D1 is 22, single and lives with his family. He earns $8,300 per month as an office assistant and contributes $3,500 of that to his family. I was told that he became involved in these offences after he lost his regular work and could not find a satisfactory alternative. He bought the master copies (charge 2), which were themselves copies, not originals, and took them to D2. He paid D2 $150 per copy and sold each one for $500, thereby making $350 per disc. He has cooperated throughout and I was reminded that it was he who led customs to D2."

10. As to the 2nd applicant, the judge said this:

"D2 is 29, single and lives with his family. He takes $15,000 from his business and contributes $5,000 to his mother. I was told that his company operates legitimately, and that among other things he copies original discs, which his customers have bought legally, for them to use as a back up, should it be needed."

11. Turning to the discs in the 1st and 2nd charges, the judge said this in regard to the 1st charge:

"The first charge involved 20 discs sold for $10,000 and containing programmes which if sold would be worth $4,000,000. While it is true that perhaps not all of those programmes would have been sold legitimately and the figure should not be taken in itself as a loss to the genuine dealers, it gives some idea of the values the court is dealing with."

As to the first sentence which we have just quoted, the judge might more accurately have said that the 1st charge involved 16 discs sold along with four unusable ones. That is not a real problem. The reference to $4,000,000 is a real problem to which we will come in a moment.

12. In regard to the 2nd charge, the judge said this:

"The two discs in charge 2 were provided by D1 to D2 for him to make the copies."

13. The maximum prison term upon a first conviction under s. 5(1) is one of two years.

14. As for the s. 5(1) offence itself, it is committed by "any person who for the purpose of trade or business has in his possession any infringing copy of a work or other subject matter in which copyright subsists ... unless he proves to the satisfaction of the court that he did not know and had no reason to believe that it was an infringing copy of any such work or other subject matter".

15. The grounds advanced on behalf of the 1st applicant comes essentially to this. First, a starting point of 15 months is too high. Secondly, there were elements of mitigation which should have been taken into account but were not taken into account. Those elements were his co-operation beyond his guilty plea and an element of entrapment.

16. We do not think that there is anything substantial in either of those two elements. The co-operation was inevitable if the guilty plea to follow was to be regarded as at all sincere. The judge did refer to the co-operation. And when he expressly identified the guilty pleas as one of the mitigating factors which he took into account, he must have had in mind also the co-operation which preceded them.

17. As for the entrapment, it was no more than the placing of a "trap" order. The placing of such orders is very much the sort of way in which this kind of activity is combatted both civilly and criminally.

18. When it comes to the starting point, the argument is essentially this. The judge sought and obtained from the prosecutor a statement as to what the discs would realise upon a legitimate sale if they were genuine. The information supplied by the prosecutor was not agreed by the defence. But the judge seems to have thought that it was. At least he treated it as if it was. And it increased the starting point.

19. This is no case for laying down guidelines, tariffs or anything of the kind.

20. That cannot be attempted until one has a series of cases in which the facts were clearly established at first instance. In the present case, the facts established at first instance were sketchy and invaded by facts which were not established at all but treated as established.

21. All things considered, we simply accept that there is substance in the complaint as to the way values were dealt with. And we accede to the arguments advanced on behalf of the 1st applicant to the extent that we will reduce each of his concurrent terms and therefore his overall sentence to six months' imprisonment.

22. The only ground advanced on behalf of the 2nd applicant in which we find any substance is that there was no properly established basis for treating him more severely than the 1st applicant. We propose to treat both of them similarly.

23. In the result, both applications are treated as the appeals themselves; and both appeals are allowed to reduce each of the prison terms in this case to six months' imprisonment. Each man gets six months in all.

24. Before concluding this judgment, it is necessary to say this. What went on in the court below provides no sure foundation for the purpose of this court laying down any guidance whatsoever: except for holding up what went on below as an example of how such cases ought not to be handled in future.

25. In future, the prosecution will no doubt take steps properly to secure agreement or offer proof of the facts which it seeks to rely upon. Until that has happened in a series of cases, no opportunity for guidelines or anything of the sort will present itself.

26. Having said all of that about what went on below, we should point out that Mr Kripas who represented the prosecution before us did not appear for the prosecution below. Although we make no criticism of defence counsel below, we might add for the sake of completeness that none of the other counsel who appeared before us appeared below either.