Read the full judgment text of CAAR 000002/1999 on BabelCite. This Court of Appeal judgment was delivered on 8 September 1999 before Nazareth V.-P., Stuart-Moore V.-P. and Keith J.A..
Criminal law – copyright piracy – possession of infringing copies for the purpose of trade or business contrary to section 118(1)(d) of the Copyright Ordinance (Cap. 528) – sentencing – custodial sentences of immediate effect the norm unless circumstances are truly exceptional – distinction between proprietors of retail outlets/warehouses and their employees – no meaningful distinction in culpability between storemen, packers, delivery men and salesmen – assertion of mere employee status does not justify suspension of custodial sentence – review of sentence – Respondents arrested transporting and storing large quantities of pirated compact discs (R1: 719 VCDs; R2: 644 discs plus 22,963 discs found in storeroom) – both admitted being paid $350 per day by their employer 'Ah Hung' – judge imposed suspended sentences – Court of Appeal held judge wrong in principle as no exceptional circumstances existed – sentencing guidelines applied: R1 starting point 12 months, R2 starting point 18 months; reduced by one-third for guilty plea and mitigation; further one-quarter discount given as review required Respondents to serve immediate custodial sentences – R1 sentenced to 6 months, R2 sentenced to 6 months on charge 2 and 9 months on charge 3, all concurrent, no order as to costs – encouragement of early guilty plea indication to avoid elaborate trial preparation costs.
Legal issues: Custodial sentences for copyright piracy under s.118(1)(d) Copyright Ordinance · Distinction between proprietors and employees in sentencing for copyright piracy · Effect of assertion of mere employee status on sentence suspension
Outcome: Application for review granted; sentences imposed by the judge set aside and substituted with custodial sentences of immediate effect.
Cited by 6 cases