HKSAR v. KONG TAK WAH

HCMA843/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.843 OF 1999

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of offering for sale of infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to s.118(1)(e)(ii) and s.119(1) of the Copyright Ordinance, Cap.528.

2. The particulars of offence state that on 15 August 1998 at No.43 Tak Ching Circuit, Tuen Mun, New Territories in Hong Kong, without the licence of the copyright owner, the Appellant offered for sale (a) 480 MCDs; and (b) 6,906 VCDs being infringing copies of copyright works, namely, (i) sound recording and (ii) cinematograph films, for the purpose of trade or business.

3. After his plea of guilty, the Appellant was sentenced to 10 months' imprisonment by Mr Jenkins, Magistrate. In his Reasons for Sentence, the Magistrate referred to the judgment of Leonard J. in R. v. Ng Wai Ching, MA1309/96, in particular to the following passage :

"It is very unfortunate that, despite their efforts the Customs and Excise appear to have been unable so far to catch the big fish of the trade and can only bring the minnows before the courts. Without their salesmen, however, the big fish cannot operate and so the salesmen must be deterred. Experience has shown that they are not deterred by fines, so that resort needs to be had to custodial sentences, even where the offender is a young person with a clear record."

The Magistrate also referred to the cases of HKSAR v. Wan Wing Keung, Tang Ban Kai and Wong Wan Chu, MA Nos.278, 637 and 785 of 1998. Another case which the Magistrate had not referred to on sentence for the same kind of offence is a Court of Appeal decision in R. v. Li Wan Kei & Lee Wan Sang, Crim App No.13 of 1997.

4. In a recent case I decided, HKSAR v. Lee Kong, HCMA27/99 (22 April 1999, unreported), I said this :

"In the Copyright Ordinance enacted in 1973, a similar offence was punishable by a fine of $500 for each infringing copy. By an amendment in 1975, the fine was increased to $1,000 plus imprisonment for 12 months. In 1995, the law was amended again to increase the fine to $25,000 and the imprisonment term to two years. That was the Copyright Ordinance, Cap.39. In 1997, that Ordinance was repealed and replaced with the Copyright Ordinance, Cap.528 and the levels of fine and imprisonment were increased to $50,000 and four years respectively. The Judiciary had, at least since 1996, imposed custodial sentence on offenders of this nature. In almost all of these cases, the Courts dealing with similar kind of offence were of the view that a deterrent sentence must be passed in order to stamp out this illegal activity and invariably, immedial custodial sentences were passed. One of the purposes as stated in the decisions was to protect Hong Kong's reputation as a fair international trade centre. It appears to me that the sentences passed by the Court had been more severe as offences of this nature had become more prevalent. I have no doubt that that is the proper approach and I may say that I am bound by some of the authorities because they were decisions of the Court of Appeal. It is just proper that immediate custodial sentence be passed as a deterrent for the offence which has become prevalent and this message from these Courts is that such an offence will be dealt with severely."

I still hold the same view. The ground of appeal that the sentence is excessive is therefore rejected.

5. A subsidiary ground was raised that as the Appellant only admitted possession of 3,507 infringing copies, the Magistrate was wrong to use 6,906 VCDs plus 480 MCDs as the basis for sentencing. In fact, the Magistrate also dealt with this point. He simply took the numbers from the particulars of offence to which the Appellant had pleaded guilty. I do not find this way of dealing with the numbers of VCDs or MCDs unfair because at the hearing before the Magistrate, there was no application for amendment of the particulars of offence, despite the fact that in his cautioned statement, the Appellant only admitted possession or being in control of 3,500 odd discs.

6. Another ground of appeal is that the Magistrate erred by not addressing the question of suspension of the prison term at the time of sentencing. This ground is not entirely correct, for the Magistrate did in his oral reasons for sentence and his later written Reasons for Sentence mention that it was not appropriate in the circumstances, or that there was no justification, to suspend the operation of the term. Suspension of a prison term is based on s.109B of the Criminal Procedure Ordinance, Cap.221 which reads :

"A court which passes a sentence of imprisonment for a term of not more than two years for an offence other than an accepted offence may order that the sentence shall not take effect unless during a period specified in the order being not less than one year, nor more than three years from the date of the order, the offender commits in Hong Kong another offence punishable with imprisonment and thereafter a court having power to do so, orders under s.109C that the original sentence shall take effect."

7. Mr Watson-Brown, for the Appellant, stated that there was no or little positive guidance from the authorities as to the circumstances in which a suspended sentence was justified. However, he seemed to agree with the following statements in Cross & Cheung, Sentencing in Hong Kong 2nd Ed. p.246 to which I directed his attention during argument :

"The court shall examine all the circumstances and decide whether they are such as to warrant suspension : R. v. Leung Tak Chuen MA697/92; that the accused has pleaded guilty does not of itself begin to justify suspension : Attorney General v. Chan Sik Ming, AR8/96. When it comes to determining the length of sentence, the court should look to the gravity of the offence and also to all relevant mitigating factors. It is only after that process is complete that the question of suspension may arise : R. v. Lam Lai Chuen, CA343/88. Although the process to which the court must adhere before it comes to consider a suspended sentence is clear, the factors which may ultimately tip the scales in favour of suspension are not. However, if the humanitarian considerations are sufficiently strong, then suspension may be justified. Attorney General v. Lam Ping Chun [1989] 1 HKLR 161, 162. Further, as Cons V-P observed in Attorney General v. Yeung Kwong Chi [1989] 1 HKLR 266 at 269, the sentence may attract suspension if the probabilities that the offence was a single fall from grace and that the defendant will in future lead a blameless life, that he has a sword of Damocles hanging over him will hopefully provide the accused with an incentive to keep out of trouble."

8. The Appellant is aged 41 years. At the time of the conviction, he had four previous convictions, none of which is similar to the present one. He was sent to jail for six months in 1986 for the offence of theft, but after that he was only convicted twice of gambling which is most dissimilar to the present offence. Based on that, Mr Watson-Brown argued that the Appellant had essentially reformed from his earlier serious transgressions; he had married, settled down, made a useful contribution to society by working hard and buying his own residence when the economic downturn cost him his job. The Appellant was then subjected to a 12 months' trial on his integrity while he was unemployed. He tried very hard to remain within the law. Mr Watson-Brown described him as a typical target of the unscrupulous people who damaged Hong Kong's economic reputation by the sale of this type of counterfeit product. Counsel urged that some sympathy must lie with this former transgressor who had reformed and then by reason of exceptionally hard circumstances, he transgressed for a second time. Counsel suggested as follows :

"That the proper thing is to show society that the action is wrong, hence the sentence of imprisonment, but to show the offender that the society was prepared to acknowledge that he had tried and almost succeeded in total reform by suspending the sentence for the longest period available, namely, three years."

9. Despite Mr Watson-Brown's urges, I am not persuaded that the Magistrate had erred in passing the immediate custodial sentence, nor am I convinced that suspension of the prison term is the only justifiable course to take in the circumstances of this case. Rather, the Magistrate was bound, and so am I, by the line of authorities cited above that the Courts must impress upon the community that they are determined to stamp out this kind of offence.

10. For these reasons, I am afraid that the appeal must be dismissed.