HKSAR v. SZE PAK YEUNG

HCMA64/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.64 OF 2006

(ON APPEAL FROM STCC 55 OF 2006)

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J U D G M E N T

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1.  Following my judgment on 13 April 2006 I have now received the medical report and the report from the Probation Service which I then ordered.

2. The reports conclude that the appellant is medically fit enough and would be a suitable candidate to perform work under a community service order.

3. I must stress that the magistrate in this case was right to emphasise the need for deterrence in sentencing offenders who have committed offences contrary to section 118(1)(d) of the Copyright Ordinance but I am satisfied that there may be exceptional cases and circumstances where the need for deterrence does not necessitate the passing of an immediate sentence of imprisonment.  I consider that the circumstances of this case fall into that category.

4. I am prepared to assume, as was stated in mitigation and having seen the apparent high quality of the discs and their packing, that this was a genuine case of ignorance and naivety on the part of a 56-year-old man of previous good character who had taken over the business from a friend rather than someone who had consciously turned a blind eye to the possibility of some of his stock consisting of counterfeit goods.  As a result of this naivety the appellant has suffered substantial financial loss and is genuinely remorseful.

5. Moreover the appellant had already been detained in custody for a period of 22 days prior to his sentence on 19 January 2006.

6. As has often been said, a community service order is not a soft option.  It is punitive and involves a loss of liberty.

7. The appellant satisfies the criteria for a community service order.

8. I propose, if the appellant agrees, to make a community service order for a total of 180 hours.

9.  Sze Pak Yeung, I must explain to you the conditions of the order :

(1)	you would have to perform for 180 hours such work at such times as you may be directed by your supervising probation officer;
(2)	you would have to perform that work in a satisfactory manner;
(3)	you would have to comply with any reasonable directions of your supervising probation officer;
(4)	you would have to immediately notify your supervising probation officer of any change of address.

10. If you breach the terms of this order, you would be liable to be fined and have the community service order revoked and be sentenced for this offence again.  Needless to say that is likely to involve a term of imprisonment. 

11. If you commit a subsequent offence while this community service order is in force, you are liable to be sentenced for that offence and be brought back to court and to have this community service order revoked and be sentenced again for the offence for which you are now before the court.

12. Sze Pak Yeung, do you consent to the making of a community service order on these terms?

[Appellant consents to the making of a community service order]

13. In such circumstances, I allow the appeal against sentence.  I set aside the sentence of four months’ imprisonment and substitute a sentence of a community service order for 180 hours.