HKSAR v. Zhuang Xiaoluo

CACC265/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.265 OF 2004

(ON APPEAL FROM DCCC 451 OF 2004)

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BETWEEN

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Before : Hon Stuart-Moore VP, Gall and Lugar-Mawson JJ in Court

Date of Hearing : 6 January 2005

Date of Judgment : 6 January 2005

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J U D G M E N T

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Hon Gall J (giving the judgment of the Court) :

1.The applicant was convicted on 24 May 2004 by District Judge Chua of five charges :

“Charge 1

Possession for the purposes of, or in the course of, any trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap 528.

Charge 2

Possession of an article knowing that it is to be used or intended to be used to make infringing copies of copyright works for the purpose of, or in the course of, any trade or business, contrary to section 118(8) and section 119(2) of the Copyright Ordinance, Cap 528.

Charge 3

Making for sale or hire infringing copies of copyright works without the licence of the copyright owner, contrary to section 118(1)(a) and section 119(1) of the Copyright Ordinance, Cap 528.

Charges 6 and 7

Breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115. 
(Charge 6 alleged that the breach of condition of stay was overstaying whereas in charge 7 the alleged breach was taking up employment.)

2.In respect to the Charges 1 and 3 which related to section 118 (1)(d) and section 118 (1)(a) of the Copyright Ordinance, the applicant was sentenced to 10 months’ imprisonment on each charge to be served concurrently.  On Charge 2 which was the charge relating to section 118 (8) of the Copyright Ordinance, he was sentenced to 12 months’ imprisonment to be served concurrently with the sentence in respect of Charge 1.  In respect of Charges 6 and 7, he was given sentences of 10 months’ imprisonment on each charge, the sentences to be served concurrently to each other but consecutively to the other sentences.  The totality of the sentences passed was 22 months’ imprisonment.  The applicant now seeks leave to appeal those sentences.

3.The prosecution case was summarized by the judge as follows:

“The defendants, two mainland brothers, came to Hong Kong on 3 February 2004 on two-way permits.  In breach of their condition of stay, they worked in a flat in Lam Tin.  The flat in fact was a medium-sized factory.  It was equipped with two sets of CD replicating machines with six CD writers and oneset of DVD replicating machine with six DVD writers.

When customs officer broke in to the flat on 18 February 2004 they found 1,204 blank CDs and a total of 20,737 infringing copies.  These consisted of mostly CD-Rom DVDs, some CD-Rom PC game discs and 377 CD-Rom discs in MP3 format.  They admitted under caution they had been working for ten days burning discs and packing them.”

4.Mr Saw SC, in his helpful written submission, sums up the grounds of appeal in this way :

“	(1)	that the 15 months starting point adopted by the Judge in respect of the 6th and 7th charges was manifestly excessive in view of the circumstances of the case and the previous sentencing guide authorities; and
	(2)	in the light of (1), the total sentence of 22 months imprisonment passed on the Applicant for the charges of which he was convicted was manifestly excessive.”

5.We have considered the sentences passed in respect of the Charges 1 and 3 and find them to be appropriate. 

6.With regard to Charge 2 we accept that there is no tariff in respect of copyright offences (see : The Queen v. Li Wan Kei and Another, CACC13/1997 (unreported)).  It is however appropriate when sentencing in respect of such offences to take into account the size and nature of the operation involved.  In Li Wan Kei, the defendants pleaded guilty to the possession of 305 infringing copies and were sentenced, after appeal, to 16 months’ imprisonment and one year’s imprisonment respectively. 

7.In Secretary for Justice v. Wong Dak Sun and others, CAAR 10/1999 (unreported), was an application for review in respect of the same offence as that charged in Charge 2.  The defendants who appealed were sentenced, on appeal, to 22 months’, 13 months’ and 18 months’ imprisonment.  In that case there was a trial.

8.In this case, the judge took as a starting point 18 months’ imprisonment on Charge 2 and reduced it to 12 months to reflect the plea.  In all the circumstances of this case and to reflect what has been said by this court in earlier decisions, we are of the view that the starting point should have been 24 months’ imprisonment, reduced to 16 months’ imprisonment to reflect the plea of the applicant. 

9.With regard to Charges 6 and 7, the judge said this :

“What I have seen happening of late in my court is that those with criminal intent wishing to come to Hong Kong have avoided the 15 months sentence by coming here on a two-way permit.  To discourage the abuse of the two-way permit system I think it should be made clear that persons who come here with a criminal intent cannot expect a sentence of just a few months for breach of condition of stay and something nearer to 15 months would serve as a deterrent.”

10.We have been referred by counsel to a number of cases relating to overstay of a two-way permit and to breach of conditions of stay by taking up employment.  We bear in mind in respect of Charges 6and 7 that the overstay was of one day and also that the employment taken up in breach of the condition of stay was illegal employment.  The four cases to which we have been referred are :

(1)	HKSAR v. Kau Hiu Mui, HCMA1149/2000;
(2)	HKSAR v. Tiongson Patricia Manalad, CACC268/2001;
(3)	HKSAR v. Chan Sum Fuk & Anor, CACC228/2002; and
(4)	HKSAR v. Xie Chun Mei, CACC285/2003

11.We are satisfied from these cases that the sentence of 10 months imposed by the judge after plea in respect of Charges 6 and 7 did not properly reflect what is said in the earlier decisions of this court.  We do, however, find that the taking up of illegal employment of this nature by the applicant in his breach of condition of stay to be a seriously aggravating feature of the offence.  A proper starting point in respect of Charges 6 and 7 would have been one of 9 months’ imprisonment.  This is reduced to one of 6 months’ imprisonment in respect of each charge to reflect the pleas.  Accordingly, the application for leave to appeal against sentence is allowed and treated as the appeal. 

12.However, having regard to our earlier observations about the sentence imposed on Charge 2, we are also mindful of the provisions of section 83I(3) of the Criminal Procedure Ordinance.  With regard to Charge 2, the applicant will serve a period of imprisonment of 16 months instead of the sentence of 12 months passed by the judge.  The sentence in respect of Charges 1 and 3 are undisturbed.  In respect of each of Charges 6 and 7 he will serve a period of 6 months’ imprisonment concurrent with each other. 

13.We have considered the totality of the sentences.  The 22 months’ imprisonment arrived at by the judge is, in overall terms, an appropriate sentence.  We order the sentence in respect of Charges 6 and 7 will be served consecutively to that which we have passed in regard to Charge 2.  In all other regards, the sentences are concurrent.  This makes a total sentence of 22 months’ imprisonment.  In the event, therefore, there is no alteration to the overall length of the sentence.

Mr D.G. Saw, SC,  DDPP, leading Miss Olivia Tsang, GC, of Department of Justice, for the Respondent

Mr Wong Po Wing, instructed by Messrs Y.C. Lee, Pang & Kwok, assigned by Director of Legal Aid, for the Applicant