HKSAR v. TANG HONG LING AND ANOTHER

HCMA 105/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 105 OF 2004

(ON APPEAL FROM KCCC 17996/2003)

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J U D G M E N T

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1. Having read the affirmation of the 1st Appellant, in her application to reverse a plea and also the attitude of the Respondent's counsel, Mr Wong, there is fairly have considered that having considered the circumstances leading to the guilty plea, the Respondent will not oppose the application of the 1st Appellant towards the plea in relation to the 3 charges. I agreed with Mr Wong that this is the proper and just course to take, so the case of the 1st Appellant will be remitted back to the Magistrates' Court for trial, a trial date will be fixed and meanwhile, the bail of the 1st Appellant, Madam Tang, will be extended on the same terms until further order.

2. This is an appeal against sentence. The 2nd Appellant is the 2nd Defendant in the court below and she was charged with possession for the purpose of, or in the course of, any trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner. She had pleaded guilty and she was sentenced to 3 months' imprisonment and the Appellant now appeals against that sentence on the basis that it is manifestly excessive. Mr Davies, representing the Appellant in this case, argued that the learned Magistrate had failed to give sufficient weight to the mitigating factors advanced on behalf of the Appellant and he had failed to give adequate consideration to the calling of background report before sentencing the Appellant. Those background reports would, of course, include a Community Service Report. Mr Davies also complained that an immediate custodial sentence was therefore wrong in all the circumstances.

3. The Appellant is 52 years old and has a clear record. The facts reveal that Customs Officer had raided the shop in question and arrested the 1st Defendant in the case who was the salesperon in the shop at the time. Altogether they seized some 2,000 discs of which 933 were the found to the infringing copies.

4. It is also part of the mitigation that the whole shop have a total of about 12,000 discs and so the infringing copies found made up a very small percentage of the stock in the shop.

5. The learned Magistrate accepted the prosecution submission that approximately one-third of the 993 infringing copies were of a low quality, by that, it meant that it was packed with poorly printed material which did not properly fit the boxes. But the rest were of a quality similar to the samples given by the defence. The defence had also produced the invoices to show that they had ordered the discs from Mainland China, but the reason that the date of the invoices do not match the stock was because the shop had been closed down after the raid by the customs officers, so documents had gone missing.

6. The learned Magistrate in considering sentence had considered that a custodial sentence in this sort of case is inevitable, but, he considered that this case merited a lower sentence than that imposed on stallholders and operators of "fly-by-night" shops. He said that given all the circumstances and the clear record of the accused, he took the lowest starting point possible and arrived at a 41/2 months' starting point.

7. The learned Magistrate also made the observation that in many cases of this type, the shop has infringing discs together with legal discs in order to mask the sale of infringing discs. Mr Davies complained that there is no evidence to show that in this case, the Appellant was doing this.

8. I agreed with the learned Magistrate that often in cases of this nature, storeowners may sell legally obtained discs together with infringing copies. But in this case, it would appear that the infringing discs were indeed of a very small number and the Appellant had surrendered herself to customs officers upon hearing of the raid. She had also frankly admitted to the customs officers that the goods in the shop belong to her. It is an indication of the remorse of the Appellant and possibly an indication too of the fact that she had obtained these discs from Mainland China and had failed to recognize the fact that some of the discs were of a poor quality and therefore of Dubious origin.

9. While it is true that in cases of this nature sentences of imprisonment are inevitable, each case has to be looked at individually. As Mr Davies has pointed out, a Community Service Order is a form of punishment recognized by the courts as an alternative to imprisonment. The learned Magistrate in this case had failed to order a background report on the Defendant together with a Community Service Report. This case was difficult for the learned Magistrate to sentence, as the learned Magistrate himself observed.

10. This court is inclined to the view that the circumstances of this case and the background of the Defendant would bring her right in the middle of being given a custodial sentence by being going to prison or a form of Community Service Order. I therefore will accede to the request of Mr Davies to call for a background report and a CSO report on the Appellant. I am not promising that CSO will definitely be given but I will need to look at the report.

11. In light of the circumstances of this case, I will therefore before making my decision as to whether to give the Appellant a chance call for a Probation Officer Report, background report and the Community Service Order Report. I adjourn this matter to 14 May at 9:30 am for a Probation Officer's background report and a Community Service Order Report.