HKSAR v. CHIU KAM KONG

HCMA121/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 121 OF 2008

(ON APPEAL FROM ESCC 5441 OF 2007 and ESCC 165 OF 2008)

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J U D G M E N T

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1. On 11 January of this year the appellant pleaded guilty to two pairs of offences at Eastern Magistrates’ Court before the principal magistrate Mr Tallentire.  Each pair of offences consisted of one charge of selling infringing copies of copyright works for the purposes of or in the course of trade or business without a licence, and one charge of exposing for sale infringing copies of copyright works for the purpose of or in the course of trade or business without a licence.  He was sentenced to terms of imprisonment which ultimately resulted in a total of 20 months’ imprisonment.  He now appeals those sentences.

2. The facts of the case are all too familiar.  The appellant was employed as a salesperson at Shop No. 115A, 1/F, Oriental Shopping Centre, 188 Wan Chai Road in Wan Chai.  On 13 November 2007, the date of the first pair of these offences, an undercover officer went to the shop where the appellant worked and purchased five DVDs which were infringing copies.  The appellant was the person who sold them to him for a sum of $100.  Later that day customs officers returned to the shop and seized 2,448 infringing DVDs.  The appellant was still there employed.  Those DVDs were subsequently determined to be valued in excess of $61,000.  The appellant was arrested and subsequently released on police bail. 

3. On 29 November 2007, some 16 days later, officers attended the same store where the appellant was again employed.  He sold those officers 9 DVDs, 6 of which were subsequently determined to be infringing copies.  As before, later that day other officers returned to the shop and seized 2,008 suspected infringing DVDs.  Subsequent examination revealed that 334 of the 2,008 were confirmed to be infringing copies. 

4. The appellant admitted both pairs of offences under caution and, as I have said, on 11 January he pleaded guilty to both pairs of offences. 

5. When sentencing the appellant the magistrate made reference to the quantity and value of the seized infringing copies.  At paragraph 3 of the Reasons for Sentence he said this :

“  At 1732 hours, other officers entered the shop, cautioned the defendant and arrested him.  They seized 5 infringing digital video discs (the subject of charge 1) [and] 2,448 infringing digital video discs (the subject of charge 2). … The value of the goods seized was just over $50,000.”

In dealing with Counts 3 and 4 he said this :

“  At 1758 hours on the 29^th of November last police and customs mounted a further operation against the same premises.  The defendant was again found to [be] selling infringing copies [there].  This resulted in the same charges, 9 infringing digital video discs related to the first charge and 2,008 to the second.  Again over $50,000 worth of goods were seized. ”

6. When sentencing the appellant the magistrate said at paragraph 7 :

“  … took into account the facts of the cases, especially the number and value of infringing copies.  Also it was a severely aggravating factor that ESCC5441/2007 was committed whilst the defendant was on bail for ESCC 165/2008.  Also the defendant’s appalling criminal record showed him to be a persistent offender who had a total disregard for the law and was prepared to use any means to make money.  This conviction was his 7^th conviction for this type of offence, however further perusal of the record shows 2 offences involving obscene articles and an offence involving dutiable goods.  The conclusion I drew was that in reality this was the 10^th occasion he had resorted to dealing in illegal goods.  All factors taken together drew me to the conclusion that a substantial prison [term] was called for.  Therefore on each set of offences I took an overall starting point of 15 months imprisonment [reducing it] to 10 months for the plea of guilty.  I ordered on each offence a sentence of 10 months imprisonment concurrently to each other on each set of offences but as the 2 sets of offences were separate criminal acts committed with aggravating features I ordered the 2 sentences of 10 months imprisonment to be served consecutively.  That is a period of 20 months imprisonment in total.”

7. On the basis of the facts recited by the magistrate and having regard to the very helpful authorities placed before me by Miss Lai on behalf of the prosecution, there could be no criticism of those sentences. 

8. Having considered a number of authorities and, in particular, the Secretary for Justice v. Choi Sai Lok [1999] 4 HKC 334, a starting point of 15 months’ imprisonment for Counts 2 and 4 could not be properly criticised. 

9. However, in so far as Counts 3 and 4 are concerned it would appear that the magistrate has fallen into error.  Counts 3 and 4 originally charged the defendant with selling in the case of Counts 3, 9 infringing copies and displaying for sale in the case of Count 4, 2,008 infringing copies.  Those charges were subsequently amended after examination of the discs.  It transpires that 6 of the 9 discs in Count 3 were infringing discs, but more importantly that 334 of the 2,008 discs in Count 4 were determined to be infringing copies.  Whilst that is still a very significant number of infringing copies nevertheless the starting point for Count 4, bearing in mind the starting point adopted for Count 2, cannot be sustained.  The starting point for Count 3 likewise is to be reduced.  In the circumstances, bearing in mind the authorities it is appropriate to adopt a starting point of 12 months’ imprisonment for Counts 3 and 4, reduced to 8 months in each case by reason of the plea of guilty.  This is the only valid criticism that can be made of the magistrate’s approach to sentencing. 

10. Bearing in mind the fact that the 3^rd and 4^th offences were committed whilst the appellant was on bail for the 1^st and 2^nd offences and that the 3^rd and 4^th offences were separate and discrete from the 1^st and 2^nd offences, it is appropriate that the sentences on Counts 3 and 4 be concurrent one to the other should be consecutive to the charges on Counts 1 and 2 which are also concurrent one to the other.  In the end result the sentences on Counts 1 and 2 remain the same and the sentences on Counts 3 and 4 are reduced from 10 months’ to 8 months’ imprisonment. 

11. For the avoidance of doubt I reiterate that the sentence is of 8 months’ imprisonment are concurrent one to the other consecutive to the 10 months’ imprisonment on Counts 1 and 2 results in a term of imprisonment of 18 months’ imprisonment.  The appeal is allowed to that extent.