HKSAR v. Wai Bing Chee, Jenny

HCMA333/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 333 OF 2007

(ON APPEAL FROM TWCC 3468 OF 2006)

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BETWEEN

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Before : Hon Tong J in Court

Date of Hearing : 17 May 2007

Date of Judgment : 17 May 2007

Date of Handing down Reasons for Judgment : 27 July 2007

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REASONS FOR JUDGMENT

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1.The appellant was charged with the offence of attempting to export from Hong Kong infringing copies of copyright works otherwise than for private and domestic use without the licence of the copyright owner. 

2.The appellant pleaded guilty and admitted the facts.  After hearing the mitigation, the magistrate imposed a term of six months’ imprisonment.  She now appeals against the sentence. 

3.Having considered the Reasons for Sentence, the relevant documents and the submission, I had allowed the appeal and ordered the term of imprisonment to be suspended.  I now state the reasons.

4.According the admitted facts, the appellant had taken a parcel of DVDs to the Garden Road Post Office for export at the Air Mail Centre, Hong Kong International Airport.  When the custom officers at the Air Mail Unit opened up the parcel for inspection, they found 1,400 odd DVDs of which 318 items were infringing copies. 

5.Having been referred, inter alia, to the case of Wong Chi Choi, HCMA628/2005, the magistrate decided to adopt a starting point of 12 months, but reduced it to six to reflect the plea, the clear record and the health condition of the appellant. 

6.The appellant submitted to this court that the 12 month starting point was too high and the six month immediate custodial sentence being wrong in principle and/or manifestly excessive in the particular circumstances of this case.  It was contended that the present case did not involve any commercial dealing, and even if it were to be so treated, there were exceptional circumstances which would justify a suspended term of imprisonment. 

7.I believe it is important to first look at the factual basis of the sentence as found by the magistrate.  The magistrate had this to say in his the Reasons for Sentence :

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3.

It was advanced by defence lawyer in mitigation that, in fact, the DVDs belonged to her ex-employee or employee, who was at the material time, in China and who asked the 2nd defendant for a favour to send her something so that she can arrange in Hong Kong to sent it to overseas.  When the 2nd defendant received the parcel, that was big and she felt suspicious, but she still decided to help the employee to send it over.  There was nothing for the prosecution to rebut this mitigation, the factual scenario, and after consideration, the Court believes this was in fact what happened, and the Court sentenced the 2nd defendant on this factual basis.”

8.The reasonable conclusion to be drawn, based on the comments made by the magistrate, was that the appellant was, on this occasion, simply helping a friend, an ex-employee, to mail the discs.  The appellant was herself a businesswoman but her area was jewellery for the overseas market, not audio or video discs.  In the circumstances, there was strength in the submission that there was no commercial elements involved in this case, and it appeared to be an isolated incident.

9.I do accept the principle stated in the case of Secretary for Justice v. Choi Sai Lok & Another [1999] 4 HKC 334, where the Court of Appeal held that immediate custodial sentence should generally be imposed for offences of this kind, unless the circumstances were truly exceptional, and that would be the case even for the first offender, as a deterrent to others.  However, in view of how the appellant had come to commit the offence, the number of discs involved, her personal and mental condition as disclosed in the medical report, there may be just sufficient reason to treat the case as an exception and allow the term to be suspended.  But I must emphasize that cases that fall into this exceptional category must be rare and a term of imprisonment must be the general rule even for the first offender, particularly when the act involved cross-border activity.  

10.For the above reasons, I had allowed the appeal to the extent that the six month’s imprisonment would be suspended for two years.

11.I had explained the meaning and effect of the breach of the suspension of the imprisonment to the appellant and she indicated that she understood.

12.The transcript revealed that at one stage of the hearing, the court prosecutor made the following submission to the magistrate : 

“	It is prosecution’s position to ask for a custodial sentence for the present offence, despite the difference.”

Mr Sarony, for the appellant, stated that the prosecution should not have advocated for a particular kind of sentence.  I agree with his submission.  However, I do not think the prosecution’s words had any impact on the magistrate’s choice of sentence.  Mr McNamara, who was conducting the mitigation, had immediately pointed out that sentence was not a matter for the prosecution.  The magistrate had also corrected the prosecutor, reminding her that it was an inappropriate comment.  As I said, I believe the magistrate, in imposing the sentence, had not been affected at all by the request of the prosecution. 

Ms Winnie Lam, GC of Department of Justice, for HKSAR

Mr Neville Sarony, SC and Ms Angela Gwut, instructed by Messrs Au, Thong & Tsang, for the Appellant