HKSAR v. Choy Ming

HCMA000647/2002

HCMA 647/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 647 OF 2002

(ON APPEAL FROM TWCC 554 OF 2002)

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Coram: Hon V. Bokhary J in Court

Date of Hearing: 18 October 2002

Date of Judgment: 18 October 2002

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J U D G M E N T

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1.On 3 May this year, the Appellant appeared before Miss Adriana N Ching in the Magistrate's Court in Tsuen Wan to face 3 charges laid under s.118(1)(d) and s.119(1) of the Copyright Ordinance, Cap. 528, which makes it an offence to possess infringing copies of copyright works in the course of trade and with a view to infringement. Each offence was committed in Tsuen Wan on 6 November 2001.

2.Charge 1 involved 24 infringing VCDs. Charge 2 involved 4,569 VCDs and 222 DVDs. Charge 3 involved 408 VCDs and 109 DVDs. The Appellant pleaded guilty to all three charges. The Magistrate then sent for a background report on the Appellant. This was received and considered, and on 24 May this year, the Magistrate sentenced the Appellant to four months' imprisonment on Charge 1, 18 months' imprisonment on Charge 2 and nine months' imprisonment on Charge 3. Acting on the totality principle, the Magistrate ordered that one month under Charge 1 be served consecutively to Charge 2, and that three months on Charge 3 be served consecutively to Charges 1 and 2. The total sentence was therefore 22 months' imprisonment.

3.The Appellant now appeals against sentence. Two perfected grounds of appeal have been prepared and were argued by Mr Christopher Coghlan of counsel for the Appellant. Ground 1 reads:

"The sentence 18 months' imprisonment on Charge 2 was excessive in all the circumstances."

And Ground 2 reads:

"The Learned Magistrate, in the circumstances of this case, erred in not imposing concurrent terms of imprisonment for all 3 charges. (To this extent the Appellant is also appealing against the sentences on Charges 1 and 3.)"

4.Mr Coghlan for the Appellant suggests that for the total number of infringing copies involved in this case the appropriate overall sentence should be in the region of 21 months' imprisonment. Mr Ozorio for the prosecution did not argue to the contrary. Having considered all the authorities cited, I consider it appropriate to take that overall starting point. Mr Coghlan also submitted that in addition there are special circumstances in mitigation. I do not think so. However, effect must be given to the guilty pleas. In my view, the appropriate punishment is 14 months' imprisonment. I reduce the sentence on Charge 2 from one of 18 months' imprisonment to 14 months' imprisonment. I order that the sentences on all the charges be concurrent. The appeal is allowed to that extent.

Representation:

Mr Christopher D F Coghlan, instructed by Legal Aid Department, for the Appellant.

Mr Daniel Ozorio, SGC of the Department of Justice, for the Respondent.