HKSAR v. Man Ka Keung

HCMA 938/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 938 OF 2004

(ON APPEAL FROM TMCC 2774 OF 2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Dates of Hearing: 12 November 2004

Date of Judgment: 12 November 2004

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate’s Court of two charges; one of selling infringing copies of copyright works and the second charge is for possession for the purpose of trade or business of infringing copies of copyright works.

2.The learned Magistrate, after considering the mitigation advance on his behalf by a lawyer, then considered the law and the facts of the case and sentenced the Appellant to a total term of eight months’ imprisonment.  The Appellant now appeals against that sentence.

3.The facts simply show that on the date of the offence, Customs officers were conducting an anti-piracy operation in Tuen Mun.  A Customs officer posing as a customer managed to buy from the Defendant two TV game discs, which are the subject matter of the first charge.  And upon revealing his identity, Customs officer then searched the shop of the Appellant and discovered the goods which form the subject matter of the second charge.

4.Under caution, the Appellant had admitted that he was the proprietor of the shop and he had bought the subject game discs at HK$10.00 per disc and sold four discs for HK$100.00.  He knew that all the seized TV game discs and cartridges were infringing copies.  He also knew that he had not got the authority of the copyright owner to sell those discs.  The total value of the seized discs amounted to HK$153,460.

5.The Appellant had a clear record.  The Appellant, who appeared in person in this appeal, advanced again grounds of mitigation hoping to convince this Court to reduce his sentence.  The Appellant submitted that he knows that the sentence is not a heavy one but that the Court should extend him some mercy and allow his early release in order for him to attend his son’s graduation this month.

6.The Court of Appeal in Hong Kong have said many times that offences of this nature calls for a deterrent sentence because the courts have to protect Hong Kong’s reputation as a trading centre and that in the normal course of events, sentences for these type of offences should be custodial sentences unless there are exceptional circumstances.

7.The learned Magistrate had adopted a reasonable starting point in this case, considering the fact that the Court of Appeal had said that proprietors of retail outlets and warehouses who committed these offences should receive longer sentences then persons employed by them.  So a total sentence in this case of eight months’ imprisonment, taking into account the large number of pirated copy discs cannot be said to be in anyway excessive.  As far as whether there are any exceptional circumstances in this case to justify a departure from the norm the learned Magistrate had considered that and decided quite rightly that there are no exceptional circumstances.  Family circumstances do not qualify as exceptional circumstances through the Court may have sympathy for the Appellant’s plight.  The fact of the matter is that every Defendant to appear in court has some family problem which they wish to resort to in mitigation.  I have heard the Appellant and I cannot say that in this case that there are any exceptional circumstances that would justify me interfering with the learned Magistrate’s proper sentence in this case.  So the appeal is dismissed.

Miss Mickey Fung, GC, of Department of Justice, for the Respondent

Appellant in person