HKSAR v. Chan Hon Fai

HCMA 426 & 430/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NOs. 426 & 430 OF 2005

(ON APPEAL FROM KTCC 7327/2004 and KCCC 2124/2005)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 22.6.2005

Date of Judgment : 22.6.2005

Date of handing down Judgment : 22.6.2005

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J U D G M E N T

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Background

1.The Appellant was charged, in two separate cases, with an offence of “Selling Infringing Copies of Copyright Works”, contrary to section 119(1) of the Copyright Ordinance, Cap. 528. He pleaded guilty to both offences before Mr. D.J. Dufton and was sentenced to 8 months imprisonment for each offence, sentences to run consecutively, making a total of 16 months. He appealed against the sentences.

2.Although the trial was conducted in English, I conducted the appeal in Chinese as the Appellant was not legally represented. After hearing submissions I dismissed the appeal. I gave oral reasons at the time and I now reduce my reasons in writing, with an elaboration on the background.

Admitted facts

(KTCC7327/2004)

3.The offence took place on 4.5.2004. the Appellant was seen sitting at the counter in front of a shop in a building in Sham Shui Po. On the counter was inlaid card folders. The Appellant handed one of the inlaid card folders to an undercover customs officer saying “Newest software boss”. The officer selected two titles (4 discs) and paid the Appellant $100. The Appellant told the officer to return in 15 minutes later to collect the discs quoting the number 495. The officer returned 15 minutes later when he was directed by the Appellant to collect the discs from “shop 30” in the shopping centre opposite. After collecting the discs the custom officers revealed their identities and arrested the Appellant. The Appellant was granted bail after he was charged.

(KCCC 2142/2005)

4.This offence took place on 31.3.2005 (while the Appellant was on bail). The Appellant committed this offence with the same pattern as the one committed on 4.5.2004. On this occasion the infringing copies sold to the undercover customs officer was 8. Under caution the Appellant admitted he was responsible for receiving orders and money and directing customers to collect the orders from another shop for which he would receive $400 per day.

Reasons for Sentence

5.The learned magistrate referred to the case of Secretary for Justice v CHOI Sai-lok [1000] 4 HKC 334 in which the Court of Appeal held that immediate custodial sentences should be imposed unless the circumstances can truly be said to be exceptional. The Court of Appeal further said that the open flouting of the law in that trade required sentence, even for first offenders, to act as a deterrent to others. The learned magistrate stated that the trade in infringing copies continued unabated in the Sham Shui Po area.

6.The learned magistrate said that the commission of an offence while on bail is a serious aggravating feature of sentence, citing HKSAR v SHEK Kin-tung CACC 120/2001 in support.

7.The Appellant had 21 previous convictions with 13 similar to the present offences. The learned magistrate was of the view that the Appellant was a persistent re-offender and he cited the authority of HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830.

8.The learned magistrate took into account the Appellant’s plea. He was fully aware of the illness suffered by the Appellant’s wife. He was aware of the Appellant’s assertion that his wife’s cancer had spread and may not have many days to live. The learned magistrate referred to the fact that he had acceded to the Appellant’s request for an adjournment on 24.12.2004 so that the Appellant could spend more time with his sick wife. When the Appellant failed to answer bail on 15.2.2005 and attending court on the next day, the learned magistrate further adjourned the case to April and granted the Appellant bail so that he could continue visiting his wife. The Appellant committed the offence in 2005 while on bail.

9.The learned magistrate adopted a 12-month starting point for both charges and gave the Appellant the usual 1/3 discount. As the two offences were separate and distinct, committed almost 11 months apart, and that the Appellant committed the 2005 offence while on bail for the 2004 one, the learned magistrate ordered both sentences to run consecutively. The learned magistrate was satisfied a total sentence of 16 months properly reflected the Appellant’s criminality after considering the totality principles.

Grounds of appeal

10.The Appellant frankly admitted that he cannot advance any grounds to say the sentences imposed were manifestly excessive. He repeated his assertion that his wife’s cancer had spread and may not have long to live, asking me to cut short his sentences so that he can see his wife before she died.

Judgment

11.Having read the reasons given by the learned magistrate the sentences imposed cannot be faulted. The sentences are certainly not manifestly excessive.

12.What the Appellant told me today (about his wife’s illness) was before the learned magistrate when he considered the appropriate sentences. There is nothing new. The learned magistrate has carefully considered all the mitigating circumstances. The Appellant was already given adjournments so that he could attend to his wife. There are no exceptional circumstances here for me to interfere with the sentences imposed. For these reasons I dismissed the appeal.

Ms. Olivia TSANG, Government Counsel for the Respondent

Appellant Chan Hon-fai in person