HKSAR v. LAI KWOK PING

HCMA45/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 45 OF 2001

(ON APPEAL FROM WSCC 13764 OF 2000)

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J U D G M E N T

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1. This is an appeal against sentence. The grounds of the appeal are that the sentence imposed by the magistrate was too severe and that the magistrate should not have imposed both a sentence of imprisonment and a fine.

2. The appellant pleaded guilty at Western Magistracy to an offence of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to sections 118(1)(e)(ii) and 119(1) of the Copyright Ordinance, Cap.528. For that offence he was sentenced to four months' imprisonment and fined $5,000.

3. The facts of the offence were straight-forward. On 21 December 1999, the appellant operated a shop at Aberdeen which was searched by the police. They found 739 infringing video compact discs, music compact discs and CD-ROM discs. The appellant, being present in the shop premises, had himself been seen to sell such discs to customers immediately before the police had informed the appellant of their identity and searched the premises.

4. On 16 March 2000 the appellant had been dealt with at the North Kowloon Magistracy for a similar offence which he had committed shortly after the present offence. In respect of that other offence, he had been sentenced to six months' imprisonment and fined $3,000. He told me today that $3,000 was his own.

5. The learned magistrate, in the present case, rightly took the view that the proper way of proceeding to sentence was to impose a sentence in respect of the present case which would reflect the proper totality of sentences which would have been imposed had both offences been before the original sentencing magistrate. Accordingly, he imposed a sentence of four months' imprisonment and fined the appellant $5,000. Both sentences reflect a total period of ten months' imprisonment and a total fine of $8,000.

6. So far as the sentence of imprisonment imposed on 16 March 2000 is concerned, given that the appellant was apparently sentenced on the basis he had pleaded guilty to that offence, that sentence reflects a starting point of sentence of about nine months' imprisonment. An appropriate starting point of sentence in respect of the present offence would also be one of at least nine months' imprisonment, given the quantity of infringing discs involved and the need to impose deterrent sentences to protect Hong Kong's reputation as a trading centre. That starting point would also have been reduced to a sentence of about six months' imprisonment, following the appellant's plea of guilty.

7. Effectively, by imposing a sentence of four months' imprisonment, the magistrate considered that a substantial portion, i.e. two months of that otherwise appropriate sentence, should have been served concurrently with the earlier sentence imposed on 16 March 2000 by the other court.

8. Whilst the learned magistrate did not outline these considerations and did not adopt any starting point for the present sentence, that is, from the terms of his Reasons for Sentence, the only way he could have proceeded to arrive at the result he did. In my view, that result was entirely proper. It is a totality of sentence of ten months' imprisonment for two entirely separate offences committed, from the papers before me, on different dates in different parts of Hong Kong. Indeed, given the fact of two entirely separate offences, the overall sentence of ten months' imprisonment could be considered somewhat lenient. It is certainly not too severe.

9. The learned magistrate also imposed a fine of $5,000 on the appellant. That amounts in totality to a fine of $8,000 when taken in conjunction with the fine imposed in the earlier sentence of 16 March 2000. The primary purpose of a fine is to prevent an offender, particularly in a commercially orientated offence such as this, from retaining unscathed the profits of his offending. There is nothing wrong in principle in the imposition of a fine in addition to a sentence of imprisonment in such a case. Such a course is specifically allowed in the terms of section 113A of the Criminal Procedural Ordinance, Cap.221.

10. In my view, the magistrate imposed a perfectly proper level of fine on the appellant, given the information which was provided to him before sentence. On two occasions at least, the appellant's counsel had told the magistrate that any fine could be paid out of the bail monies provided by the appellant. No criticism can be made of the magistrate's sentence so far as the imposition of a fine was concerned, given the information provided to him beforehand.

11. It was only after sentence, indeed immediately afterwards, that the appellant informed the magistrate of his financial difficulties with loan sharks. If he had said so himself or through his counsel before sentence had been imposed, I am sure the learned magistrate would have embarked upon a further enquiry as to the appellant's means.

12. The appellant is or was a drug addict of long standing, that is what he has told me today and it is confirmed by his criminal record. I accept that he is a person of limited means. In all probability, given his background and circumstances, I accept what he has now said about borrowing from a loan shark is true. I accept also he initially thought he was able to pay a fine of $5,000 from his bail monies in the event his only punishment was by way of fine. He told me that was his understanding at the time before the learned magistrate and that understanding is supported albeit indirectly, in the transcript.

13. Accordingly, I have taken into account what the appellant now tells me as to his financial circumstances so far as the fine imposed upon him is concerned. He tells me he is financially able to pay a fine of a lesser amount in the sum of $2,000. I am satisfied he can do so. That would result in a totality of fine of some $5,000 when the fine of $3,000 imposed on 16 March 2000 is also taken into account.

14. Accordingly, I set aside the magistrate's sentence so far as his imposition of a fine of $5,000 is concerned and substitute that with a fine of $2,000.