Attorney General v. Pang Lau
|
CAAR000004/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) ----------------- APPLICATION FOR REVIEW NO. 4 OF 1975 -----------------
----------------- Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.) Date of Judgment: 19th March,1975. ----------------- DECISION ----------------- McMullin, J.: 1. The respondent pleaded guilty to a charge of being in possession of infringing copies of sound recordings the subject of copyright contrary to the provisions of Section 5(1)(a) of the Copyright Ordinance. The facts which were not in dispute disclosed that he was the occupier of a premises at 627, Nathan Road, Ground Floor and that he was, at the date laid in the charge the 5th of November 1974, the sole proprietor of a business which consisted in the selling of such recordings at that premises. A man called CHAN Yat-hung, who was seen at the premises when they were raided had formerly carried on the same business at the same premises and had twice been convicted and fined therefor. 2. The respondent's entire stocks of cassette tapes, gramophone records, and cartridge tapes were seized in the course of the raid upon the 5th of November. On the 18th and 19th of November local copyright owners and agents examined these goods and out of 11,487 cassette tapes 7,482 were found to be infringing copies; 798 gramophone records out of 1,115 were found to be infringing copies; and 10 cartridge tapes out of 22 were similarly found at fault. 3. Following upon his plea, the respondent, in mitigation, told the court that he had not known when he commenced this trade that it was against the law and he added that he had at the date of the trial already closed down his business. The magistrate ordered the confiscation of the entire stock which had been seized by the police and imposed in addition a fine of $2,000. The Attorney General now applies to this court to review that order on the ground that the fine was manifestly inadequate. The respondent appeared in person in opposition to this application. 4. In the course of his helpful address Mr. Lucas, for the Attorney General, put before us a summary of sentences extracted from the records of decisions in the magistrate's courts concerning similar offences for the period between the 11th of April 1974 and the 14th of March 1975. Three categories of offender are covered by that summary : manufacturers of infringing material; distributors thereof; and those who, like the present respondent, were found guilty of selling such products by retail sale. He concedes that even in the latter category there is such a wide variation between the cases in relation to the fines imposed that it is not possible to establish a coherent pattern which would enable us to work out even a roughly symmetrical equation between the quantum of goods seized and the amount imposed by way of fine. For retail shop confiscations the unevenness in the sentencing picture can be well examplified by examples taken at random from the summary. Thus, for example, we find upon the 31st of October 1974 a fine or fines totalling $3,840 being imposed in respect of equipment which is stated to have been worth no more than $1,920. While on the 11th of September in the same year the seizure of equipment valued at $5,340 from a retail shop was visited with a fine or fines totalling only $500. We had, of course, no detailed information as to the other circumstances of these many cases. However, it may be said that despite the difficulty which the results of these decided cases put in the way of interpretation we would have been disposed, were it not for the circumstance to which we will later refer, to regard the fine imposed in the present case as so manifestly inadequate as to require the court's intervention. We were told, and it was not disputed, that the total value of the goods seized was in the region of $30.000, a figure approximately three times greater than the average value of such equipment taking the summary as a whole. There were no figures in evidence before the magistrate concerning the average daily profits of this business but Mr. Lucas suggested, somewhat speculatively, that they might have been somewhat in excess of a thousand dollars. While we do not think it would be fair to adopt that as a figure it is to be noted that even the respondent himself agrees that his daily profits were in the neighbourhood of $300. Mr. Lucas has emphasised the detrimental nature of this trade to the economy of Hong Kong and he points out that the pirating of copyright material has increased sharply over the last few years. From none of this do we dissent and in all the circumstances we would have been disposed to say that the fine was manifestly inadequate, but for one consideration. Section 5 of the Ordinance provides that an offender shall be liable on conviction -
The present case concerns a first conviction and a fine was therefore the only penalty available. If we were to increase the fine we could only do so having regard to the cardinal principle relating to fines, which obliges the court to have regard to the offender's capacity to pay. If the sum imposed by way of fine were to have the effect that the respondent would be unable to pay it and must therefore go to prison instead we would, in effect, be imposing a penalty which the Legislature itself has withheld in the case of a first offender. The fine has been paid in the present case and Mr. Lucas asks us to say that the circumstances of the trade and the quantum of the material seized in themselves affords sufficient evidence of a capacity to pay a greatly enhanced fine. The respondent says however (and it has not been disputed) that he has closed down his business. Since his entire stock in trade has been seized and since he was in operation for only two months prior to the seizure of his goods a lively doubt must remain, even in the absence of anything said by the respondent upon the hearing of the appeal, as to his capacity to pay any sum which we would deem to be commensurate with the nature of the offence. That doubt is fortified by what was said by the respondent at the hearing of the appeal. He stated that he had paid the fine only by resorting to friends to lend him money and that he now is engaged in the business of hawking without a fixed pitch. Mr. Lucas urges the view that it would be very difficult for the Crown in every case to produce evidence of the capacity of an offender to meet any fine imposed. We can only say that we found considerable substance in that contention but the Legislature has chosen a specific method of dealing with first offenders, which, in cases such as the present, may not infrequently be thwarted notwithstanding the manifest intention that heavy fines are to be imposable. That intention, evidenced by a comparatively recent increase in the amount of imposable fines, must in such cases come into collision with the principle to which we have alluded earlier and which is set forth succinctly in the judgment of the Court of Criminal Appeal in Reg. v. Lewis (Times : 1/12/64) in the following terms :
That, of course, concerned a case in which the law provided an alternative of imprisonment upon failure to pay a fine but those observations apply a fortiori to the case where no such alternative is provided in the law creating the offence. Where therefore the evidence before the court leaves in doubt the offender's capacity to pay, and where he protests that he has no such capacity, and applications to review what the Crown regards as an inadequate sentence is unlikely, in the present state of the law, to succeed. The application is refused. Representation: |