HKSAR v. WONG MAN YIU AND ANOTHER

DCCC 343/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 343 OF 2016

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Reasons for Sentence

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1.  Both defendants pleaded guilty to all the charges they face. The 2nd defendant pleaded guilty to Charge 1, which was selling infringing copies of copyright works, namely five DVD‑Rs. Charge 2, which both defendants pleaded guilty to, is a similar offence, possession of infringing copies of copyright works. They both were charged with possessing 611 DVDs and 149 DVD‑Rs. Charges 1 and 2 took place in a shop in Sino Centre, Mong Kok. The 1st defendant pleaded guilty to Charge 3, possessing infringing copies of copyright works, in a workshop in Kwai Chung, namely 471 DVDs, 517 DVD-Rs and 28 CD-Rs. The 1st defendant also pleaded guilty to Charge 4, making for sale infringing copies of copyright works. He admits making 699 DVD‑Rs without the licence of the copyright owners. The last charge, Charge 5, the 1st defendant pleaded guilty to possessing articles to be used to make infringing copies. In the same workshop, the 1st defendant possessed eight optical disc duplicators, 37 DVD writers, and 7,677 blank discs.

2.  The facts of this case are as follows.  This was an undercover operation by the Customs & Excise Department.  Between September 2012 and March 2013, they kept under surveillance the shop in Sino Centre as well as the workshop in Kwai Chung I have just referred to.  The operation turned overt on 26 March 2013.  The particulars of all five charges relate to that date.

3.  At about 5 pm on that day, an undercover officer bought a box set of discs from the shop in Sino Centre.  He was sold the set, which included five discs, by the 2nd defendant.  He paid $100.  All five were later confirmed to be infringing copies of copyright works.  Not long after the sale, the 2nd defendant was arrested and cautioned in the shop.

4.  The shop was then searched by Customs officers. They found many, many discs, some inside, some outside in boxes.  After consulting copyright owners, amongst the discs found, there were 611 DVDs and 149 DVD‑Rs confirmed as infringing copies.

5.  At about the same time, the 1st defendant was arrested at the lift lobby of the industrial building in Kwai Chung where the workshop was located.  He admitted in the lift lobby, after being arrested and cautioned, that he had finished work and had been burning discs upstairs.  He took the Customs & Excise officers upstairs.  He had a key and a password to gain access to the workshop.

6.  Upon a search, Customs officers found many, many suspected infringing discs and all the equipment referred to in Charge 5, all that equipment capable of burning infringing copies.  Amongst the discs found are those mentioned in Charge 3.  The defendant admits possession of them; after his admission, charged with making 699 DVD‑Rs on the same day, resulting in Charge 4.  Lastly, all that equipment found culminated in Charge 5. Under further caution, both defendants made full admissions.

7.  I have been told that out of all the discs found in the shop and the workshop, 7 per cent of them were found to be infringing.

8.  The best mitigation for both defendants is their plea of guilty today.

9.  They both have criminal records, but the 1st defendant only has one previous.  It is an old conviction, and not similar.  The 2nd defendant has two previous convictions; neither of them are similar.  He did have, at the time of this offence, a suspended sentence.  It was a suspended sentence for a common assault charge, for which he was sentenced to 2 months’ imprisonment, suspended for 2 years.  He was arrested for this offence just a couple of weeks after that suspended sentence was imposed.  Convictions for both defendants are of a very different nature to the charges here today.

10.  Mr Tsang has said all he can say on behalf of both defendants in mitigation.  The 1st defendant is 48 years old, married, with a young daughter, and he lives with his family, including his parents-in-law.  He is the sole breadwinner for the entire family.  I have had letters of mitigation from both the defendant and his wife.  After the defendant’s arrest in March 2013, he turned to a legitimate trade, and is now supporting his family selling telephone accessories.  His letter explains that he will never commit a similar offence or any offence again.  In short, he is remorseful and has learned his lesson.

11.  The 2nd defendant is 35 years old, divorced, but has a 10-year-old child.  I have been told that since his arrest for these offences, he too is now in legitimate employment, working in logistics.  I will take into account that his role here as a salesman can be distinguished from that of the 1st defendant.

12.  As I have said, this operation turned overt in March 2013.  That is over three years ago, but the delay, I am sure, and it has been confirmed today, is not through any fault of the prosecution or the Customs & Excise.  As has always been the case, Customs & Excise have found it very time-consuming locating copyright owners to respond to their inquiries.  I have always found it ironic that copyright owners want Hong Kong to crack down on this illegal trade, and quite rightly, but have never been very co‑operative in the investigation stages.  It has always taken the authorities a long time to conclude investigations.  As I have said, it is not the fault of the prosecution or the Customs & Excise, and it is certainly not the fault of the defendants.  In three years, both defendants have moved on to law-abiding and legitimate employment, yet awaiting punishment for these offences.  Having that hanging over their heads must be stressful.

13.  The prosecution have referred me to two authorities, HKSAR v Tai Yuk Fung Winky CACC 33/2006, as well as a District Court case, HKSAR v Li Lin and Lin Mingzhu DCCC 664/2009.  In the Court of Appeal authority, the court found a 30-month starting point appropriate for possessing articles intended to be used to make infringing copies, and a 12-month starting point for possession of infringing discs, depending on the numbers.  In the District Court case, a similar starting point was found appropriate for the equivalent of Charge 5 here.

14.  Defendants, please stand up.  I have heard, as I have said, everything that can be said in mitigation.  I have taken into account the facts of the case.  I am prepared to accept it was not a large-scale operation.  I have taken into account the percentage of infringing items found was small.  I have also considered the authorities produced for my consideration by the prosecution.

15.  Let me start with the 2nd defendant.  Having considered all those factors, I find the following starting points appropriate.  For Charge 1, for the 2nd defendant, and for Charge 2, I will take a 12-month starting point.  I am going to reduce that by 3 months for the amount of time that has passed between arrest and your plea today.  That reduces the starting point to 9 months.  You have pleaded guilty.  You are entitled to a discount of one-third.

16.  After that discount is applied, the 2nd defendant, on Charges 1 and 2, you are sentenced to 6 months’ imprisonment.

17.  I have taken into account the totality principle and the facts of the offences, and I will order that both Charges 1 and 2 be served concurrently.

18.  I will activate a part of the suspended sentence.  I will activate 1 month of Kwun Tong 93/2013.  That will be served consecutively to the 6 months of Charges 1 and 2. 

19.  Therefore, the 2nd defendant, you are sentenced to a total of 7 months’ imprisonment.  Do you understand?

2ND DEFENDANT: Understood.

20.  For the 1st defendant, I will, having considered all the relevant factors, take the following starting points as appropriate. For Charge 2 and 3 I will take a 12‑month starting point.  For Charge 4, I take a starting point of 18 months’ imprisonment.  For Charge 5, I take a starting point of 30 months’ imprisonment.

21.  Similarly, I will reduce those starting points for the delay in prosecution.  The starting point for Charge 2, I will reduce that by 3 months.  Therefore, the starting point is now 9 months. For Charge 3, I reduce the starting point by 3 months, and the starting point is now one of 9 months.  For Charge 4, I reduce the starting point by 3 months, and the starting point is now one of 15 months.  For Charge 5, I reduce the starting point by 6 months, and the starting point will now be one of 24 months.

22.  You pleaded guilty.  You are entitled to a discount of one‑third.  After that discount is applied, the 1st defendant, for Charges 2 and 3, is sentenced to 6 months’ imprisonment.  For Charge 4, it will be 10 months’ imprisonment.  Charge 5 will be 1 year and 4 months’ imprisonment.

23.  I have considered the totality principle, and although there are two addresses, but in my view, they are part and parcel of the same operation conducted by the 1st defendant.

24.  I will order that Charges 2 to 5 be served concurrently.

25.  Therefore, the total sentence is one of 1 year and 4 months’ imprisonment.  Do you understand that sentence?

1ST DEFENDANT: Understood.