HKSAR v. HO KAM WING

HCMA731/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 731 OF 1998

-------------

--------------

-------------------------

J U D G M E N T

-------------------------

1. The Appellant was convicted on his own plea of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, and he was sentenced to eight months' imprisonment.

2. The infringing copies consisted of 426 CD-Rom discs and the record shows that the Appellant accepted that the value of the CD-Rom discs were $17,000. The learned Magistrate took as a starting point for sentence 12 months' imprisonment. In doing so he was in line with various recent authorities which he had cited in his Reasons for Sentence. He properly allowed a 1/3rd discount from the starting point in respect of the Appellant's early plea of guilty.

3. As I have said, the sentence is in line with recent authorities, it cannot be said that infringing copies to the value of $17,000 is a particularly small quantity. It may be that other courts have dealt with other offenders in a slightly different way, but the question is whether, in this instance, this particular Magistrate imposed a sentence which was too severe and from the record, it does not appear to me that he did. I appreciate that the Appellant has had his bail estreated because he arrived late. Again this is something that is in the province of the Magistrate to do or not to do. It is a matter of discretion, I do not think that it is something which the Magistrate would have to take into account in arriving at the proper sentence.

4. Accordingly there appears to be no good grounds for reducing this sentence and the appeal is dismissed.