Ngai Sum-tin v. The Queen

CACC000197/1978

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Coram: McMullin, J. in Court.

Date of Judgment: 17 March 1978

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JUDGMENT

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1. The defendant was found in possession of a number of cassette tapes and other equipment which form the substance of the first four charges. He pleaded guilty to all of these charges. He had formerly been a restaurant worker but was forced to abandon that work because of ill health. He then took employment at a wage of $1,000 per month with a person in the illegal trade of "pirating" tape and other sound recordings. This resulted in his being prosecuted for an offence under section 5 of the Ordinance and he was fined $5,000 on 27th May, 1976. Thereafter in October 1976 he set up on his own account in this same business on capital supplied by the second defendant in the present case who is not now an appellant. He married in January 1977 and has an infant son. The agreed facts disclosed that in the ensuing nine months he was set fair in this illegal trade making a net profit of about $10,000 per month this being shared with the second defendant.

2. The first and second charges are brought under the Copyright Act 1956, section 21 of which, with various other sections, has been extended in its application to Hong Kong by the Copyright (Hong Kong) Order 1972 and Mr. Nguyen makes the point that this is the appellant's first conviction under this Act and that therefore the learned magistrate should not have imposed sentences of imprisonment on the first and second charges because it is provided in subsections 7 and 8 of section 21 of the Act that, on a first conviction, the offender is liable to fine only and not to imprisonment. The point is well taken and I think it must have been overlooked by the learned magistrate. The only modification to section 21 which is made by the Schedule to the Copyright Order is to substitute $500 for 40 shillings in para. (a) of subsection 7; $50,000 for fifty pounds in para. (a) of subsection 8 and twelve months for two months in para. (b) of both subsections. The fines imposed on the first and second charges were of course within the jurisdiction of the learned magistrate to impose and so in each case was the alternative of six months in default of payment.

3. No such objection arises in relation to the sentences imposed on the third and fourth charges which were taken, respectively, under s.5(1) and s.5(2) of the Copyright Ordinance. The scheme of the charges seems to be as follows: under the Act two distinct offences were charged (a) making, between the stated dates, infringing copies (s.21(1) (a)) (first charge) and (b) making between the stated dates plates, i.e. master tapes, for the production of the infringing copies (s.21(3)) (second charge). Under the Ordinance two distinct offences are charged: (a) (third charge) possession, on the day of the raid and discovery, of the pirated copies referred to on the first charge (s.5(1)) and (b) (fourth charge) possession of the plates and of the equipment for making the plates (s.5(2)) referred to in the second charge.

4. The scheme of the sentences appears to be as follows: the making of the plates (second charge) and the making of the infringing copies (first charge) are to be taken as meriting consecutive sentences. The possession of the infringing copies (third count) and the making of the infringing copies (first count) are to be regarded as meriting concurrent sentences and the same is the view taken of the making of the plates (second count) and the possession of the plates (fourth count). So far so good. However the learned magistrate has provided that the longest term of imprisonment, the twelve months imposed on the fourth charge, is to run consecutively to the term of six months imposed on the first charge and has made no order, as between the third and fourth charges, as to whether those sentences are to be consecutive or concurrent.

5. Since the sentence of six months imposed on the first charge (as well as that on the second charge) must go we are left with six months legitimately imposed on the third charge and twelve months on the fourth and no order as to how they are to run inter se. Nevertheless, it must be assumed I think that it was the learned magistrate's view that an overall term of eighteen months was appropriate in view of the circumstances generally and that if she had been aware of her want of jurisdiction to impose prison sentences for the offences under the Act she would have ordered the sentences on the third and fourth charges to run consecutively. So much for Mr. Nguyen's preliminary objection, which was properly taken and which succeeds, but without, I am bound to say, attracting much practical advantage to the main contention upon the appeal which is simply that this totality of sentence (potentially 24 months should the fines not be paid) exceeds, in the circumstances disclosed, the "going rate" for such offences. The learned magistrate relied principally upon the decision of the learned Chief Justice in Ho Jimmv v. The Queen ⁽¹⁾. In that case a sentence of twelve months for an offence under s.5(2) of the Ordinance was upheld as was a sentence of twelve months in respect of a conviction under s.3(1)(e) of the Merchandise Marks Ordinance for possession of blocks for forging a trade mark. The latter sentence was however imposed to run concurrently with the other sentences. There was also a charge under s.5(1) of the Copyright Ordinance in respect of the same cassette tapes which formed the substance of the charge under s.5(2) for which a fine of $10,000 or six months in default of payment was imposed the default sentence to run consecutively to the other sentences. This too was upheld upon appeal.

6. Of the several cases cited by counsel this is clearly the decision most in point on the facts of the present case. In Criminal Appeal 722 of 1976 CHAN Yiu-sai v. The Queen on which Mr. Nguyen relies Leonard, J. set aside an immediate custodial sentence of three months for an offence under s.5(1) and substituted for it a term of six months suspended for two years and he also increased the fine of $1,500 to $12,000 (no sentence in default of payment is mentioned in the judgment). That was however an instance of a retailer found in possession of pirated cassette tapes and records and there were no previous convictions and the defendant was earning only about $1,100 per month by his illicit trade. Leonard, J.  emphasized the significance of the change in the law introduced by the 1975 amendment and he acknowledged the need to sustain the intention of the Legislature and it might be said that the nature of the substituted penalties itself reflects the learned judge's appreciation of the enhanced gravity of even such a first offence.

7. By contrast in the present case we have a flourishing and far more lucrative business in the manufacture and distribution to retailers of pirated tapes, admittedly for retail sale within the Colony and not without. That was however also the situation in the CHAN Yiu-sai case and the learned judge in that case made due allowance for it. What renders the present case altogether more serious than either of these two earlier cases is the nature and circumstances of the previous conviction. Here is a man who was moved up in this trade from mere employee to successful entrepreuner in a matter of a few months after his original conviction and evidently wholly unchastened by this first encounter with the law.

8. Mr. Nguyen finally urges leniency on the ground that the second defendant, who put up the capital for the equipment and did the work of distributing the tapes to retailers, was not imprisoned and merely received fines totalling $20,000 on the three charges with which she was concerned a term of eighteen months' imprisonment in default of payment being provided. She had a clear record but nevertheless, in view of the harsher penalties which have begun to be imposed since the law changed in 1975 she may rightly be regarded as fortunate in getting away without any immediate sentence of imprisonment. This is perhaps the single point which has given me most concern in this case. Nevertheless the law in this territory is clear - disparity of itself is not a sufficient reason for reducing a sentence otherwise considered appropriate. That is the ratio of the Full Court decision in R. v. LEUNG Hui ⁽²⁾ emphatically endorsed by Huggins, J.A. very recently in R. v. CHAN Man-chuen ⁽³⁾. Nor, finally, can I agree that eighteen months is, in view of the prior conviction, out of scale - viewed on a "tariff" basis. Since the law changed there has not been a very considerable volume of decisions to establish anything very impressive as a tariff guide - The present decision may go some way towards advancing the position. I find myself unable to say that the sentences are excessive. The appeal as against the sentences imposed on the third and fourth charges is dismissed; it is allowed only to the extent indicated above in relation to the immediate custodial terms imposed on the first and second charges.

Representation:

(1) Criminal Appeal No. 1191/76.

(2) (1973) H.K.L.R. 238.

(3) Criminal Appeal 1044/77.