HKSAR v. WONG HIU NGAI

HCMA1055/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1055 OF 2000

(On appeal from Eastern Magistracy Case No. ESCC 2465/2000)

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J U D G M E N T

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1. The appellant Wong Hiu-ngai appeals against her sentence of 3 months' immediate imprisonment for an offence of offering for sale infringing copies of copyright works for the purposes 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.

2. That sentence was passed on 21 September 2000 by Mr Symon Wong, Permanent Magistrate sitting at Eastern Magistracy. The appellant pleaded guilty to this offence at trial. At trial, as in this appeal, Mr Giles Surman of counsel represented her.

3. Briefly, the facts of the case were that, at about 13.55 hours on 21 October 1999, a party of Customs officers on an anti-piracy operation saw the appellant standing beside the counter of Shop 51C, Kings Park Lane Shopping Centre, at 278-288 Kings Road, North Point. A television and video player were turned on and the appellant was heard announcing that all DVDs were $70 each or $180 for three.

4. The Customs officers entered the shop and searched it under a search warrant. They found 375 pirated compact disks. The appellant admitted that she had no authorisation from the copyright owner to sell these disks. She was arrested and cautioned. She said that she was only a salesgirl, paid $200 to $300 a day.

5. The appellant, who is aged 25 and a married woman with a young child and carrying another, has no previous convictions. Before sentencing her, Mr Wong called for background and community service reports. As the appellant was in her early pregnancy, a community service order was not recommended.

6. Today, and in his grounds of appeal, Mr Surman argues that the starting point of 8 months' imprisonment taken by Mr Wong was too high, that he should have given more weight to the community service report and the background report that he received, and to the appellant's time in custody awaiting the preparation of the reports.

7. He also argues that Mr Wong paid insufficient regard, in passing sentence to the appellant's explanation of how and why she came to take the job as a salesgirl in the shop, her role as the sole carer for her 3-year-old child and her pregnancy, and that he should have regarded these matters as being sufficiently exceptional to warrant his suspending the period of imprisonment.

8. It is quite clear from the appeal file that Mr Wong was well aware of the factors that went to the appellant's mitigation. He was aware that she was pregnant and had a young child. He took note of the fact that the number of pirated DVDs was relatively small when compared to seizures in other cases. He was aware that she was no more than a salesgirl and had only worked in the shop for 20 to 25 days before her arrest. He was aware that she had taken the job to ease a considerable financial burden on her immediate family.

9. With all these matters in mind, he took a starting point of 8 months' imprisonment. He took into account her guilty plea and her clear record, and reduced that period to 5 months. He regarded her pregnancy as a factor of personal hardship. He took into account, and I quote his own words, that "I had absolutely no doubt, that for somebody like this defendant, and for her family, her incarceration must be something of a nightmare." And he further reduced the term of imprisonment from 5 to 3 months.

10. Mr Wong, however, was also well aware that this type of offence is all too prevalent in Hong Kong. As he rightly said, the victims are the owners of the intellectual property in the works depicted on the discs whose rights have been infringed. There is international pressure on Hong Kong to stop the trade in pirated video and sound recordings and Hong Kong has an international obligation to do so. The penalties of Hong Kong not doing so will be severe international trade sanctions and the loss of Hong Kong's reputation as a place for fair and clean business, which will ultimately ruin our economy.

11. The judiciary has for a number of years imposed custodial sentences on offenders who sell pirated video discs, be they VCDs, DVDs or whatever medium technology is able to produce. In HKSAR v. Luk Chau HCMA 25 of 1999 (unreported), the case referred to by Mr Wong in his statement of reasons, it was said that:

"It is incumbent for sentencing courts to press home the seriousness of the crime by continuing to pass deterrent sentences on those who are caught, even if they are first offenders and may not be the proprietors."

12. It must not be forgotten that the maximum period of imprisonment for this offence is 4 years and the maximum fine - and I stress in respect of each infringing copy - is set at level 5, a maximum of $50,000. It is not a petty offence. The purpose behind the legislation is not to regulate the sale and supply of pirated VCDs and DVDs, but to stop the trade in them altogether. The trade in pirated VCDs and DVDs can only continue for as long as there are people who, like this appellant, are prepared to take the risk of working in shops and stalls selling such items. It is only by passing sentences of immediate imprisonment on the salesmen and thereby discouraging them - and others who may be tempted to do such work - that there can be any hope that this trade - which is to nobody's benefit - can be eradicated.

13. Mr Wong considered very carefully whether the appellant's sentence should be suspended. He regarded her pregnancy as - and again I quote his words - "...a relevant, material and humanitarian factor in arriving at that decision". He was of the view that deterrence outweighed the humanitarian considerations as sentencing courts must impress on the community that they are determined to stamp out offences of this nature.

14. It follows from what I have said that I do not find the sentence passed to be either manifestly excessive or contrary to law or principle. If anything, it is too short, but I respect the care that Mr Wong took in arriving at it and the factors that guided him, and I do not propose to increase it.

15. This morning I am told that the appellant is now 5 months pregnant and that her expected date of confinement is 17 March next year. As an exceptional humanitarian act - and I stress it is in the exceptional circumstances pertaining to this appellant only - I am going to alter Mr Wong's sentence to provide that it be suspended for a period of 18 months and that the appellant need not serve an immediate term of imprisonment. Clearly it would be highly undesirable for her to give birth while in prison should there be any complications, or suffer any medical problems whilst in prison. But again I stress, this is an exceptional humanitarian act and in no way does it set a precedent for future cases.