HKSAR v. Tao Tat Kwan

HCMA000297/1999

1999, No. MA297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 297 OF 1999

_______________

________________

Coram: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 12 May 1999

Date of Delivery of Judgment: 12 May 1999

________________

J U D G M E N T

________________

1. On 24th February 1999, this Appellant pleaded guilty before Henry Mierczak Equire in the Magistrate's Court at Kwun Tong to two charges of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to section 118(1)(e)(ii) and 119(1) of the Copyright Ordinance, Cap. 528. He was sentenced to six months' imprisonment on the first charge and 10 months' imprisonment on the second charge. The sentences were ordered to run concurrently.

2. He now appeals against his sentences. He has lodged a Notice of Appeal against Sentence in the standard form but has added nothing to the proforma ground therein that his sentences are too severe. The Magistrate, in his detailed reasons for sentence, said this:

"This type of offence is prevalent in Hong Kong and Kwun Tong Plaza is an especially notorious outlet for infringing copies. Many convictions have resulted with respect to these premises. Warnings have been issued that custodial sentences would be passed for these types of offences even for first offenders due to the flood of these types of cases in this area. There is a flourishing illegal trade in 'pirated' compact discs and films which is operating in open defiance of the law. The victims here are the proprietors of the intellectual property whose rights have been violated. There is international pressure to stamp it out. There is an international obligation placed on Hong Kong to do so. There must be a deterrent sentence imposed R. v. NG Wai-ching M.A. 1309/1996 and R.v. NG Wai-ching M.A. 1309/1996 and R.v. YUNG Mo-yiu M.A. 1310/1996. As well here it was clearly a commercial operation and the total number of items was not small being 100 CD's and 1813 VCD's.

I took into account the maximum penalty for the offences. The message must be that those who operate these types of premises go to prison. Offences of this nature are on the increase in Hong Kong and deterrent custodial sentences are called for. HKSAR V. TANG Bau-kai M.A. 637 of 1998.

For the first offence I took a starting point of 9 months imprisonment, and for the second offence a starting point of 15 months imprisonment. The appellant had pleaded guilty to the matters and would get credit for that but he did not have a clear record he could rely on in mitigation. I therefore reduced the sentences to 6 months and 10 months respectively.

The offences had occurred at the same time and placed and so I ordered that the sentences be served concurrently. Nothing had been put to cause me to reduce the sentences further."

3. In all the circumstances, I am satisfied that the sentences imposed by the Magistrate are appropriate and not too severe at all. Accordingly, the appeal against sentence is dismissed.

Representation:

TAO TAT KWAN, Appellant in person

Mr MAN Tak-ho, Jonathan (of the Department of Justice) for the Respondent