HKSAR v. CHOW CHEUK WAI

[English Translation – 英譯本]

HCMA 495, 503, 504, 505, 506 & 516/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEALS NOS. 495, 503, 504, 505, 506 & 516 OF 2000

(ON APPEAL FROM NKCC NOS. 2167 & 820 OF 2000,
TWCC NOS. 390 & 908 OF 2000,
WSCC NO. 5113 OF 2000,
TMCC NO. 1438 OF 2000)

-------------------------------------

BETWEEN

-------------------------------------

------------------------

JUDGMENT

------------------------

1. The Appellant pleaded guilty at the magistracy to six counts of “without the licence of the copyright owner of a copyright work, offering for sale an infringing copy of the work for the purpose of trade or business”, contrary to sections 118 and 119 of the Copyright Ordinance, Cap. 528, Laws of Hong Kong. He was sentenced to imprisonment for a total of 29 months. He now appeals against sentence.

2. The six offences were committed by the Appellant during the period from March 1999 to December 1999 at five to six different locations. Each of the offences was uncovered by Customs officers who conducted anti-piracy operations, and on each occasion the Appellant claimed that he was the proprietor of the shop in question and the owner of the pirate CDs in question. At trial, however, he claimed that he had merely been engaged to sell the pirate CDs for a remuneration.

3. NK 820/2000 involved a total of 2,907 pirate CDs and 6,461 suspected pirate CDs. TW 908/2000 involved a total of 1,149 pirate CDs and 2,411 suspected pirate CDs. TW 390/2000 involved a total of 1,890 pirate CDs and 2,676 suspected pirate CDs. WS 5113/2000 involved a total of 1,693 pirate CDs and 2,208 suspected pirate CDs. NK 2167/1999 involved a total of 1,859 pirate CDs and 2,885 suspected pirate CDs. TM 1438/2000 involved a total of 1,980 pirate CDs. The six offences involved a total of 11,478 pirate CDs (suspected pirate CDs were excluded) with a total value in excess of $400,000.

4. Having considered the Appellant’s background, submissions in respect of mitigation and the relevant case law, the magistrate sentenced the Appellant to 4 months’ imprisonment for each of NK 820/2000 and TW 908/2000, 6 months’ imprisonment for each of TW 390/2000 and WS 5113/2000, 9 months’ imprisonment for NK 2167/1999 and 6 months’ imprisonment for TM 1438/2000. Taking into account the totality principle, the magistrate ordered that 6 months of the sentence for NK 2167/1999 and 6 months of the sentence for TM 1438/2000 were to run concurrently. The Appellant was therefore sentenced to a total term of 29 months.

5. The magistrate noted that this type of offences was becoming prevalent in recent years and that the relevant legislation had increased the maximum penalty for such offences. The Appellant committed the second to sixth offences when he was on bail pending trial, and this was regarded by the magistrate as an aggravating factor. Furthermore, the offences were committed in different districts, and on each occasion more than 1,500 pirate CDs were involved. Although the Appellant admitted upon arrest that he was the owner or proprietor of the shop, he said in mitigation that he was merely employed to sell the pirate CDs for a remuneration of $350 per day. The magistrate considered a similar decided case, i.e. MA 1185/1999, which involved 3,000 CDs and in which the appellate judge agreed to adopt 15 months as a starting point and reduced the term to 9 months on account of the defendant’s guilty plea. In the present case, the Appellant faced six charges, and in light of the totality principle, the magistrate adopted 6 months as a starting point. As the Appellant pleaded guilty, a one-third discount was given, reducing the term to 4 months. Regarding three of the charges, namely TW 390/2000, WS 5113/2000 and TM 1438/2000, as they involved 1,500 CDs on average, which was more than the 1,000 CDs involved in TW 908/2000, and as those offences were committed during the bail-out period, the magistrate adopted 9 months as a starting point for each of the charges, and the term was reduced to 6 months on account of the guilty plea. Regarding the final charge, i.e. NK 2167/1999, the magistrate thought that it involved 3,700 pirate CDs and therefore adopted a starting point of 12 months and then reduced the term to 9 months on account of the guilty plea. However, in the Statement of Findings, the magistrate stated that NK 2167/1999 in fact only involved 1,859 CDs and hence the sentence might have to be adjusted, but the time limit for review had already expired. The magistrate stated that, as a matter of principle, the six sentences should run consecutively as the offences were committed at different times and locations, but taking into account the totality principle, 9 months of one of the sentences was to run concurrently with the other sentences, making a total term of 29 months. The magistrate pointed out that, although there was a numerical error in the term of sentence for NK 2167/1999, the total term of 29 months was still a fair and reasonable sentence.

6. In my view, the offence of selling pirate CDs is becoming prevalent, and in response to this, the legislation has significantly increased the maximum sentence. In Choi Sai-lok, the Court of Appeal did not lay down any sentencing guideline but also considered a deterrent sentence, namely a custodial sentence, should be imposed for such an offence. In that case, the Court of Appeal found nothing improper in the starting points of 12 months and 18 months imposed on the two appellants.

7. In my view, for this type of offence, the sentencing court should not place too much emphasis on the quantity of pirate CDs involved.  It is true that the gravity of the offence is proportional to the quantity of pirate CDs involved because a large quantity of such CDs means a large-scale piracy operation which in turn justifies a severe sentence. Having said that, it does not seem completely correct in to fix a starting point solely by reference to the quantity of CDs involved, be it 1,000 or 1,500 or 2,000. Large quantities of pirate CDs are usually found for this type of cases, but Customs officers have to contact the copyright holders to verify whether they have authorized the arrested persons to sell the pirate CDs. This is a time-consuming exercise, and where a large number of CDs are involved, a long period of time will be needed. In view of this, Customs officers have recently adopted a practice of prosecuting for piracy offences solely on the basis of the number of verified pirate CDs. Suspected pirate CDs are not included in the charge but will be made known to the court for reference. As a matter of fact, in normal circumstances, the quantity of suspected CDs being found will invariably be larger than that of verified pirate CDs. The present case, for example, involved 11,478 verified pirate CDs and 16,641 suspected pirate CDs. It can therefore be seen that a sentencing approach which overemphasizes the number of pirate CDs or the number of verified pirate CDs lacks flexibility and will appear overly technical.

8. In the present case, the magistrate adopted a starting point of 6 months for the offence involving 1,000 CDs, a starting point of 9 months for the offence involving 1,500 CDs, and a starting point of 12 months for the offence involving 3,700 CDs. With respect, this approach was not wholly correct. Furthermore, on the authority of the Court of Appeal case of Choi Sai-lok, each of the six offences in the present case could attract a starting point of 12 to 18 months. If a starting point of 15 months is adopted, the term will then be reduced by one-third to 10 months on account of the Appellant’s guilty plea. Taking into account the totality principle, the fact that the Appellant committed the offences at different locations throughout Hong Kong within a short period of 10 months, and the aggravating factor that he committed the offences when he was on bail pending trial, the total term of 28 to 30 months for the six offences cannot be considered excessive. Therefore, although the magistrate might have erred in the sentencing process, the total term of 29 months is not inappropriate. In her submissions, the Counsel for the Prosecution pointed out that the Count should emphasize the most on whether the overall length of sentence was appropriate or not. In Crim App 210 and 220 of 1994, the Court of Appeal mentioned that “it is the overall length of sentence […], not the length of each individual sentence, with which an appeal court is primarily concerned”. As the total length of sentence imposed on the Appellant is in my view appropriate, I do not intend to vary the sentence. If it is necessary, I am prepared to sentence the Appellant to 10 months’ imprisonment for each offence, with the term for the second offence to commence from 4 months after the commencement of the term for the first offence, and the term for the third offence to commence from 4 months after the commencement of the term for the second offence, and so on, and the term for the sixth offence to commence from 3 months after the commencement of the term for the fifth offence, making a total sentence of 29 months. Based on the aforesaid reasons, the appeal is dismissed and the sentences are affirmed.