HKSAR v. Chan Wai Fun

HCMA001002/2001

HCMA 1002/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1002 OF 2001

(ON APPEAL FROM KTCC 2968/2001)

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Coram: Deputy High Court Judge Toh in Court

Date of Hearing: 5 December 2001

Date of Delivery of Judgment: 7 January 2002

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J U D G M E N T

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1.The Appellant initially faced a joint charge with another Defendant, a charge of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner in contravention of s.118(1)(e)(ii) of the Copyright Ordinance, Cap. 528. Ultimately, after some delay, the Appellant pleaded guilty to the charge and the other Defendant was acquitted as the prosecution offered no evidence against him. The Appellant was thus sentenced to 6 months imprisonment. The Appellant appeals against her conviction and sentence.

2.In view of the grounds of appeal, it is appropriate to mention in some detail the events leading up to the Appellant's plea of guilty.

3.On the 10th of July 2001 when the Appellant pleaded guilty, her solicitor, mitigating on her behalf, suggested that the Appellant did not know and had no reason to believe that the copies in question were infringing copies of copyright works. The learned Magistrate correctly pointed out that this was a defence under the Ordinance and therefore queried the propriety of the Appellant's plea. He adjourned the matter to the 17th of July so that the Appellant could clarify her instructions. On the 17th of July 2001 Mr Wan, the Appellant's solicitor, informed the Magistrate that the Appellant would run her statutory defence and that the 1st Defendant, which was the other Defendant, would plead not guilty. But when the charge was read to the Appellant and the other Defendant, the Appellant said she maintained her position as that of the last time. This was obviously in contradiction to what Mr Wan had earlier told the learned Magistrate, so the Magistrate therefore then adjourned the case to later in the morning for the Appellant to consider what her plea would be. When the case was called on again, Mr Wan informed the learned Magistrate that the Appellant had decided to plead guilty and would withdraw her mitigation which says that she did not know that the copies were infringing copies. The charge was then put to the Appellant again, whereupon she pleaded guilty and admitted the brief facts. On the 19th of July, a letter was received from solicitors representing the Appellant seeking for a review of the learned Magistrate's decision as the Appellant wished to reverse her plea of guilty. On 7 August, Mr Surman, who represented the Appellant, then applied to the learned Magistrate to allow the Appellant to reverse the plea on the grounds that the solicitor, Mr Wan, who represented the Appellant had also represented the other Defendant and Mr Surman alleged that because the other Defendant paid Mr Wan's fees for both the Appellant and himself that Mr Wan had "sold (the Appellant) down the river" and that Mr Wan had told the Appellant on the 17th of July that she had no defence and assured her that the sentence would not be a custodial one and the sentence would either be suspended or a community service order may be ordered. The learned Magistrate decided to adjourn the matter to the 14th of August. On the 14th of August the learned Magistrate, after reviewing the case, refused to allow the Appellant to reverse her guilty plea.

Grounds of appeal against conviction

4.Mr Surman, who represents the Appellant in this court, raises two grounds of appeal against conviction. The first ground is that the facts to which the Appellant had pleaded guilty to, did not support the charge that she offered for sale the infringing copies, as it was merely an invitation to treat. Therefore the Appellant's plea of guilty was a nullity as the facts admitted did not amount to the offence charged.

5.The second ground of appeal is that the Appellant pleaded guilty by way of inducement, duress and misrepresentation on the part of the lawyer representing her and so her plea of guilty was not an exercise of free choice as it did not result from a deliberate and informed decision. In those circumstances, the plea was therefore a nullity as it was tendered involuntarily and did not result from a deliberate and informed decision.

6.The facts to which the Appellant had pleaded guilty to was that Customs Officer saw the Appellant inside a shop where the infringing copies were displayed on racks fixed on the wall. There were three men inside the shop choosing discs. When one Customs Officer posing as a customer picked up a disc from a display rack and walked towards the counter, the Appellant had yelled out: "Choose more discs. Cheaper for you." The Appellant was arrested and on her person was found a key which opened the door of the shop. In this appeal, Mr Surman relies on the case of HKSAR v Wan Hon Sik. In that case Customs Officer saw the infringing copyright discs displayed on the wall of the shop. They heard the Appellant in that case telling people in the shop that the shop had new and old Japanese compact discs available. When they entered the shop the Appellant admitted that he was keeper of the shop. After his arrest the Appellant, in his record of interview, admitted that the discs in the shop were pirated and that he had been introducing Japanese drama CDs to customers. Longley DJ decided in that case that the learned Magistrate was wrong to simply rely on the fact that the discs were on display to find that the Appellant was offering the infringing discs for sale. As he found that s.118 of the Copyright Ordinance also penalizes a person who exposes infringing discs for sale as well as offers for sale. So Longley DJ decided that these words were intended to bear the restricted meaning accorded to it by the general law. So Longley DJ then allowed the appeal and quashed the conviction.

7.In the present appeal before me, the facts not only disclose that the discs were displayed on racks on the wall but also that the Appellant had invited the Customs Officer who was posing as a customer to choose more discs as it would be cheaper. So this case can be distinguished from the case of Wan Hon Sik. The facts thus disclose not merely simple display of the infringing copies but that the Appellant was actively promoting and offering the sale. I therefore see no merit in this first ground of appeal.

8.As for the second ground of appeal, Mr Surman submits that in pleading guilty, the Appellant had not made the plea voluntarily nor was the plea made after a deliberate and informed decision.

9.A person convicted of an offence by his own plea of guilty cannot appeal against that conviction. The Court of Appeal in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 laid down six circumstances where an unequivocal guilty plea could be rendered a nullity and they are:

(a) where the facts admitted by the Defendant did not amount to the offence with which he was charged;

(b) the admitted facts were equivocal as to guilt;

(c) the plea was tended to a charge which was defective on its face or invalid or unclear;

(d) the plea was tended involuntarily, for example, induced by duress or misrepresentation or was not an exercise of free choice;

(e) the plea was induced by fraud or made under a fundamental mistake or;

(f) the plea did not result from a deliberate and informed decision.

10.Mr Surman contends that the Appellant falls under categories (d), (e) and (f) above. The Appellant, in support of her appeal, produced two affirmations in which she set out the circumstances leading to her plea of guilty. She alleged that before the 10th of July Mr Wan had advised her that she had no defence and she should plead guilty. But she had told Mr Wan that she did not know that the discs in question were infringing copies and she said Mr Wan told her that if she pleaded guilty the court would sentence her to a community service order or a suspended sentence and that he was very familiar with the Magistrate who would be trying the case. She said she had then pleaded guilty on the 10th of July following the advice of Mr Wan and Mr Wan's mitigation on her behalf was that she did not know they were infringing copies. When the learned Magistrate called for an adjournment in order for the Appellant to reconsider her plea because of the allegation made in the mitigation by Mr Wan that the Appellant did not know the copies were infringing copies, the Appellant alleged that Mr Wan again put pressure on her to admit the charge and withdraw the allegation she did not know they were infringing copies. The Appellant then went on to say that during the time of the adjournment between the 10th of July to the 17th of July, she had approached another solicitor for advice. She says that the other solicitor advised her that she should not plead guilty to the charge. Due to Mr Wan's refusal to release the papers to her new solicitor, she continued with Mr Wan's representation of her on the 17th of July. On the 17th of July when Mr Wan informed the court that the Appellant would raise a statutory defence to the charge, but when the Appellant was asked to plead, the Appellant said that she maintained what she had said the last time referring she said to the way in which she had pleaded on the 10th of July 2001. Whereupon the learned Magistrate then asked Mr Wan to clarify the position and stood down the case. During the adjournment Mr Wan, according to the Appellant, again put pressure on her to plead guilty and assured her that the court would not send her to prison. She said that during this adjournment Mr Wan also made her sign two documents, one of which was that she no longer insisted that she did not know that the discs were infringing copies and the other document was that she had decided to plead guilty and she understood that the Magistrate may sentence her to a term of imprisonment and she duly signed. It is important to note here that the Appellant did not state her reasons for signing these documents when it was so obvious that it was against her instructions at the time and her understanding of the situation. She said that when court resumed, she realised that the Magistrate and Mr Wan were very displeased with her and so she reluctantly followed Mr Wan's advice and informed the Magistrate that she pleaded guilty.

11.In the second affirmation filed by the Appellant in support of this appeal, she mentioned that she signed the two documents on the 17th of July in the presence of her friend, a Ms Wong Yu Ho. Curiously enough, the Appellant did not say what her reasons were for signing those two handwritten documents. She also alleged that Mr Wan did not tell her that she had a statutory defence to the charge because she did not know that the discs in question were infringing copies. Mr Wan, by letter to the Appellant's solicitors, denied the allegations of the Appellant.

12.The Appellant is 36 years old. She was present in court throughout the time when the learned Magistrate queried the propriety of her plea of guilty both on the 10th and the 17th of July. What was said by the learned Magistrate was in Chinese and so she could hear both what the learned Magistrate said and what her lawyer said in court. Not only did she hear the exchange between the learned Magistrate and her lawyer, Mr Wan, on both dates, she also signed the two documents which stated that she was fully aware of her statutory defence and that by pleading guilty that she may be sent to jail. She had also before the hearing on the 17th of July obtained independent legal advice advising her not to plead guilty. In those circumstances, I am not persuaded that her plea was tendered involuntarily or that it was not the result of a deliberate and informed decision.

13.I should mention here that a lawyer who appears in court on behalf of a Defendant should arm himself with the necessary knowledge as to what legal defences may be available to his client under the charge that his client is facing. It is clear that Mr Wan in this case did not do so but, once he realised that his client's instruction could afford a statutory defence under the charge, it would appear that he did advise the Appellant that she had a statutory defence, that is why on the 17th of July, he had informed the court that the Appellant was going to plead not guilty and rely on the statutory defence. The fact that the Appellant then chose to plead guilty is also an indication that she did so knowing that she had a statutory defence but had decided to plead guilty.

14.I therefore agree with the learned Magistrate's decision in rejecting the Appellant's application before him to reverse her plea and I can find no reason whatsoever here to allow the Appellant to reverse her plea. So in the circumstances, the Appellant's appeal against conviction is dismissed.

Appeal against sentence

15.The Appellant appeals against the sentence on the ground that the starting point of 12 months imprisonment was in the circumstances too high and that insufficient weight was given to her age and her relatively clear record, in that she only had a minor theft conviction in 1979 which resulted in a $500 fine.

16.In the case of The Secretary for Justice v Choi Sai Lok and another [1999] Vol. 4 HKC p. 334, the Court of Appeal had said that:

"an immediate custodial sentence should be imposed for offences of this kind unless the circumstances could truly be said to be exceptional and that the open flouting of the law in this trade requires sentences even for first offender to act as a deterrent to others."

The Court of Appeal further pointed out that the length of sentence should be determined, for example, by the number of infringing copies involved, the length of time in which the defendant had been engaged in the trade, and factors personal to him, such as a plea of guilty. In that case, the Court of Appeal considered that the starting point of 12 months was appropriate for the Appellant who was found in possession of 719 infringing copies.

17.In this case the Appellant was in possession of 1,600 infringing copies, the learned Magistrate adopted a starting point of 12 months imprisonment following the case of Choi Sai Lok but he noted that in Choi Sai Lok case's, he was only in possession of 719 infringing copies whereas the Appellant in this case had 1,600 infringing copies. The learned Magistrate considered that he was justified to adopt a more lenient starting point because of the Appellant's personal circumstances. The learned Magistrate then gave her the usual 1/3 discount for her plea and reduced it by a further 2 months because he took into consideration the Appellant's good record and her husband's health and that she was to become a grandmother. He went on to consider if there were any exceptional circumstances in this case justifying a non-custodial sentence and he could not see that there were any.

18.In cases of this kind, it is clear that deterrent sentences are necessary because of the continued increase in this type of offences. A clear message has to be sent out to those who willingly participate in illegal trade of this nature that they can only expect a deterrent sentence whether they be employees or owners. While it is sad that the Appellant at her age should be sent to jail for this offence, it must be made clear to those who are tempted to do as the Appellant did that they cannot expect much sympathy from the courts. This type of illegal trade can only be effectively stopped if those proprietors and owners can not find people to manage or sell these infringing copies for them.

19.Thus having considered all these circumstances, I do not consider that the sentence imposed by the learned Magistrate was manifestly excessive or wrong in principle. Therefore the appeal against sentence is also dismissed.

Representation:

Mr Alain Kwok, SGC, for the DPP

Mr Giles Surman, instructed by Tai, Tang & Chong for the Defendant