HKSAR v. Li Tim Fai

HCMA001132/1999

HCMA1132/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1132 OF 1999

(ON APPEAL FROM ESCC 3318 OF 1999)

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Coram: Deputy Judge Tong in Court

Date of Hearing: 17 February 2000

Date of Judgment: 17 February 2000

Date of Handing down Judgment: 10 March 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 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 section 119(1) of the Copyright Ordinance, Cap.528, Laws of Hong Kong. The appellant pleaded guilty to the offence and was sentenced to 12 months' imprisonment. The appellant sought to appeal against the sentence.

2. The agreed facts disclosed that on 13 July 1999, the customs officers had executed a search warrant against the appellant's shop and after the search, 830 infringing video compact discs and 192 infringing music compact discs were seized. The appellant was arrested and under caution, he admitted to be the proprietor of the shop and the items were infringing copies.

3. The appellant had nine previous convictions and a number of them were of similar nature. According to the record, the appellant had a suspended sentence against him which was imposed in December 1998. That was the case of E/4004/98.

4. In conducting his own appeal, the appellant, for the purpose of comparison, had referred this Court to a number of sentences in similar cases. He asked for a reduction of his sentence because other magistrates seemed to adopt a more lenient approach. I took the view that such simple comparison was not helpful as each case would depend on its special facts and that each defendant's circumstances were different.

5. Having considered the authorities cited by the respondent, namely, Secretary for Justice v. Choi Sai Lok & Another, CAAR2/1999; HKSAR v. Kong Tak Wah, HCMA843/1999 and HKSAR v. Wong Ka Him, HCMA496/1999, I did not consider the sentence to be wrong in principle nor manifestly excessive.

6. Furthermore, the learned magistrate was entitled to activate the suspended sentence. In this regard, the magistrate had already shown leniency by ordering only two months of the activated term to run consecutively to the present sentence. Actually, the whole of the activated term could have been ordered to run consecutively.

7. There was no merits in the appeal and I would dismiss it.

Representation:

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

Appellant in person, present