HKSAR v. Sze Pak Yeung

HCMA64/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.64 OF 2006

(ON APPEAL FROM STCC 55 OF 2006)

---------------------

BETWEEN

----------------------

Before : Deputy High Court Judge Longley in Court

Date of Hearing : 13 April 2006

Date of Judgment : 13 April 2006

-----------------------

J U D G M E N T

-----------------------

1.This is an appeal by the appellant against a sentence of four months’ imprisonment imposed upon him on 19 January 2006 at Shatin Magistrates’ Court following his plea of guilty to the offence of possessing for the purpose of, or in the course of, any trade or business of infringing copies of copyright works with a view to committing any act infringing copyright without the licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of Copyright Ordinance, Cap.528.

2.The infringing copies in question were 684 DVDs which contained unauthorised recordings of Japanese cartoon films.  The defendant was the sole proprietor of a shop selling DVDs in Lucky Plaza, Shatin.  On the day of the offence he was sitting at the counter of the shop and served an undercover Customs Officer posing as a customer who bought one of the infringing discs for $50.

3.Following to his plea of guilty Miss Ody Lai, who appears before this court, made a plea in mitigation on behalf of the appellant.  She drew to the court’s attention that the appellant was a 56-year-old man of previous good character.  She also referred to a number of other matters in mitigation.  The defendant had worked all his life to support his wife and three children, principally as a road construction worker.  The physical strain of such work had resulted in him suffering persistent pain in his right leg and right body running up to his shoulder.  This had led him to accept the offer of a friend to buy the friend’s shop selling DVDs and CDs six months previously.  He had invested his life savings and borrowed from a member of his family to raise the purchase price of $150,000.  He had taken over the existing inventory of DVDs and CDs from his friend and continued to order from his friend’s existing suppliers.  The 684 infringing Japanese cartons discs were only a small proportion of the shop’s inventory of 5,000 discs.   The defendant had never thought these 684 infringing discs, which were of good quality, were infringing copies although he admitted that he made no attempt to verify their authenticity.  Since the raid by the Customs and Excise Department the matter had been hanging over his head for nine months.  Since he had closed the shop there was no possibility of him re-offending.  He had lost his life savings and was remorseful.  Miss Lai referred the court to other cases where a community service order had been made.

4.The magistrate then remanded the appellant in custody for two weeks for the preparation of a background report from the probation service and a report as to the defendant’s suitability for a community service order.  He reminded the appellant that all sentencing options remained open.

5.When the matter came before the court again on 19 January 2006, the magistrate had been supplied with the background report and the report as to the defendant’s suitability for a community service order.

6.It is fair to say that both reports were favourable to the appellant and supported what had been said in mitigation.  The report from the officer as to the defendant’s suitability for a community service order recommended that it was “worthwhile to give the defendant the chance to rehabilitate in open society”.  Because of the appellant’s alleged physical condition the officer did not recommend that a community service order be made at that moment but suggested adjoining the case for four weeks pending a medical report assessing the defendant’s suitability for doing unpaid work under a community service order.

7.The magistrate made no reference in court as to why he was not accepting the reporting officer’s suggestion but simply said that he adopted a starting point of six months’ imprisonment and reduced it to four months’ to reflect the appellant’s plea of guilty.

8.In his Reasons for Sentence prepared for the purposes of this appeal the magistrate made no reference to the suggestion of the reporting officer but restated the guideline laid down by the Court of Appeal in Secretary for Justice v. Choi Sai Lok, CAAR2/1999, that custodial sentences of immediate effect should be imposed for offences of this kind “unless the circumstances can truly be said to be exceptional”.  He went on to say that although the matters urged in mitigation were strong mitigating factors they were not reasons amounting to exceptional circumstances and that deterrent sentences were necessary.

9.If the magistrate had been of the view that the matters urged upon him in mitigation could not amount to “exceptional circumstances” justifying anything other than a sentence of immediate imprisonment, he should not have called for a report as to the defendant’s subitability for a community service order.

10.In this case I do not consider the magistrate was wrong in calling for a report as to the appellant’s subitability for community service order.  The circumstances were not those usually encountered by the court when dealing with this sort of offence.  He would not have erred if he had found that there were exceptional circumstances on the facts in this case.  Deputy Judge Toh in HKSAR v. Tsang Oi Ming, HCMA105/2004, found exceptional circumstances in the case bearing some similarity to the present one.  Moreover the appellant apparently satisfied the criteria for a community service order in R. v. Brown [1981] 3 Cr.App.R.(S) 294 followed in Chow Chak Man [1999] 2 HKC 659.

11.Having called for the report as to the appellant’s background and suitability for community service order, I consider it was incumbent on him in the circumstances of this case, bearing in mind their favourable tone, either to follow the reporting officer’s suggestion that the appellant be medically examined to assess his subitability of doing work under a community service order or to say why he was not doing so.  It may have been that because of the appellant’s physical condition he did not consider it likely that the terms of any community service order could reflect the gravity of the offence, but he did not say so.

12.In the present circumstances, which include the fact that the appellant has already been in custody for 22 days, I consider that the appropriate course for this court to take is to follow the suggestion of the reporting officer and to adjourn the case for four weeks for the preparation of a medical report assessing the defendant’s suitability for doing unpaid work under a community service order and for the reporting officer to prepare an updated report in the light of that medical report.

13.I must stress that the appellant should not be led to believe that a community service order is inevitable or indeed likely.  The court must always bear in mind the need to deter others from committing offences as prevalent as this one.

14.I adjourn this case for four weeks for the preparation of a medical report assessing the defendant’s suitability for doing unpaid work under a community service order and for the reporting officer to prepare an updated report in the light of that medical report.    

Ms Grace Chan, SGC, for Director of Public Prosecutions of HKSAR

Miss Ody Lai, instructed by  Messrs Wong & Co., for the Defendant