HKSAR v. Williams George Edward

HCMA001185/1999

HCMA1185/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1185 OF 1999

(ON APPEAL FROM ESCC 3518 OF 1999)

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Coram: Deputy Tong J in Court

Date of Hearing: 17 February 2000

Date of Judgment: 17 February 2000

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J U D G M E N T

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1. The appellant was charged with the offence of possession for the purpose of trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap.528, Laws of Hong Kong.

2. The appellant was represented by Counsel in the Magistracy. He pleaded guilty to the offence and admitted the facts. The learned magistrate imposed a term of 9 months. It is against this sentence that the appellant seeks to appeal.

3. The admitted facts disclosed that on the material day, the customs officer saw the appellant using a key to open the iron grille of the shop. Upon search, they found the infringing CDs inside the shop and in fact 3,000 odd discs, suspected to be infringing copies, were also found. Under caution, the appellant admitted to be the proprietor of the shop. He knew that the discs, which belonged to him, were infringing copies.

4. The learned magistrate took into account the prevalence of such offences and adopted 15 months as the starting point. He allowed a one-third reduction for the plea and further reduced the sentence by one month as a humanitarian gesture. Hence the sentence was 9 months.

5. The appellant was unrepresented in the appeal and the only point he made was that when he committed the offence in 1999, the usual sentence of the court for such an offence was not as severe as now. The respondent argued that with reference to the authority of Secretary for Justice v. Choi Sai Lok & Another CAAR2 of 1999, the present sentence could not be said to be manifestly excessive.

6. I agree with the respondent's submission.

7. The appellant had a total of 22 previous convictions and mostly were drug related. Although this is his first conviction in relation to copyright offence, I considered it inappropriate to give any discount to the appellant for this reason. Furthermore, the magistrate was entitled to take into account the prevalence of the offence in his jurisdiction and considered the factor of deterrence in deciding on the level of sentence.

8. In the circumstances, I was not persuaded that the prison term should be reduced and I had dismissed the appeal accordingly.

Representation:

Mr G. Di Fazie, SGC of DPP, for HKSAR

Appellant in person, present