HKSAR v. Li Kwok Ching

HCMA 1132/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1132 OF 2005

(ON APPEAL FROM ESCC 2631/2005)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 30.11.2005

Date of Judgment: 30.11.2005

Date of Handing down Judgment: 1.12.2005

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J U D G M E N T

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Charge

1.The Appellant was convicted after trial of “Possession for the purpose of trade or business of infringing copies of copyright works with a view of 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. He was sentenced to 12 months imprisonment. He appealed against sentence.

2.The trial was conducted in English before the learned magistrate. As the Appellant was not legally represented before me  I conducted the hearing in Cantonese. After his submissions I dismissed the appeal. I gave my reasons at the time and I now reduce those reasons in writing.

Facts

3.On the date in question a total of 1,037 pieces of music compact discs (“CDs”) were seized among other items by Customs Officers in the presence of the Appellant inside a shop at Hennessy Road, Wanchai. The said 1,037 CDs were infringing copies of sound recordings in which copyright subsisted and the possession thereof was without the licence of the copyright owner. The Appellant admitted to be the proprietor of the said shop. The CDs were sold at $20 for two and he employed one person to run the business.

Grounds of Appeal

4.The Appellant told me that he was not the real proprietor of the shop. He said the ‘Transfer Agreement’ (Exhibit D1) was a forgery. He was ‘conned’ and misled by the real proprietor (someone surnamed Yip) to sign a back-dated agreement so as to show that he was a proprietor after he was arrested for the offence. The reason for doing so was to enable him to falsely advance a defence that he did not know the CDs were infringing copies.

5.The Appellant also said he knew full well he was employed to sell infringing copies inside the shop. The proprietor Yip told him the former employee had been arrested and another person was needed to sell the infringing copies. The Appellant said the proprietor assured him that even if he were caught he would not be sent to jail. He believed the proprietor and agreed to work for him.

6.The Appellant told me his wife and 2 young children live in the Mainland and relied on him for support. His older sister suffers from long-term illness and his younger brother is mentally retarded. Both his siblings (who were both in court during the appeal) were recipients of social assistance. The Appellant told me that since his incarceration, his elder sister, out of the social assistance she received, remitted $1,000 per month to his wife for the family’s upkeep. The Appellant asked for a reduction of the sentence.

Respondent’s response

7.Ms. Winsome Chan, Senior Government Counsel of the Department of Justice, in her written submission, referred me to a number of authorities – including Secretary for Justice v Choi Sai-lok [1999] 4 HKC 334, HKSAR v Wong Ka-him HCMA 496/1999, HKSA v Wong Ho-fai HCMA 174/2001 and HKSAR v Man Ka-keung HCMA 938/2004  - and submitted that the starting point of 12 months was entirely proper in this case.

Reasons for Sentence

8.The learned magistrate took into account the seriousness of the offence, the number of pirated copies involved, the fact that the Appellant was selling inside a shop (as opposed to a movable street stall) and adopted a starting point of 12 months – pitching it at the middle of the usual range between 6 and 18 months. No discount was given to the Appellant since he was found guilty after trial. The learned magistrate also found the personal circumstances of the Appellant did not assist him much.

Judgment

9.In the case of Choi Sai-lok, an application for review before the Court of Appeal, Keith JA (giving judgment of the court) held (at page 339C) that immediate custodial sentence should be imposed for the possession of infringing copies of copyright works unless the circumstances could truly be said to be exceptional. The open flouting of the law in this trade required sentences, even for a first offender, to act as a deterrent to others.

10.The learned judge also said (at 340H) a distinction should be drawn between the proprietors of retail outlets and warehouses and those employed by them. However, no distinction should be drawn between salesmen on the one hand and couriers on the other. The roles played by storemen, packers, delivery men and salesmen might differ but there was little difference in terms of the criminal culpability. Differences in sentence would be justified by the number of infringing copies involved, the time in which they had been engaged in the trade and other factors personal to them such as pleas of guilty.

11.The Appellant did not advance any grounds to say the sentence imposed was either wrong in principle or manifestly excessive.

12.The grounds the Appellant advanced were unusual. I will first deal with the assertion that he was not the real proprietor. It is hard to believe that the Appellant agreed to pretend to be the proprietor of the shop after he was caught. Even assuming the Appellant was telling the truth about the forged document, his act amounted to perverting the course of public justice as he fabricated documentary evidence to support a false claim (that he was the proprietor and he did not know the copies were infringing copies). If I were to accept that ground as a proper ground to reduce the sentence, I would be sending out a wrong message to the public and inviting those already involved or contemplating to involve in such criminal acts to mislead the courts.

13.I next deal with the Appellant’s assertion that he had been assured by Yip that he would not be sent to jail even if caught. The Appellant is a married man aged 49. He has been in trouble before (having 9 previous convictions, though none similar) and has served short prison terms. He is not a naïve young man. It is hard to believe that he would just blindly believe what others told him. Even assuming that he held the belief he would not be sent to jail as a first-offender of such offence, his mistaken and unfounded belief can hardly be a ground to reduce the sentence.

14.Having considered the role played the Appellant (as the claimed proprietor of a ground floor shop); the number of infringing copies involved; the circumstances of the possession (i.e. inside a ground floor shop as opposed to a movable stall); his personal background; and the authorities cited by the Respondent, I cannot say the learned magistrate has erred in principle to adopt a starting point of 12 months, nor can the sentence be said to be manifestly excessive.

15.Family hardship which is usually attendant upon the conviction is to be viewed as part of the price an accused has to pay for the crime. While I sympathise with the Appellant in respect of the predicament he faces since his incarceration, I see no exceptional grounds to reduce the otherwise proper sentence.

Ms. Winsome CHAN, Senior Government Counsel of the Department of Justice for the Respondent

The Appellant LI Kwok-ching in person