HKSAR v. Fong Chun Keung

HCMA136/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.136 OF 2007

(ON APPEAL FROM TWCC 2315 OF 2006)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 31 July 2007

Date of Judgment : 30 August 2007

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JUDGMENT

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1.On 8 January 2007 the appellant was convicted by Mr Glass sitting in the Tsuen Wan Magistrates’ Court of an offence of possessing for the purpose of trade or business infringing copies of copyright works, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance.

2.The particulars of the charge were that on the day in question, in a shop in a shopping centre in Kwai Chung, the appellant had in his possession 28 digital video discs which were infringing copies of copyright works.  After the conviction he was remanded in custody for reports to be obtained.  On 22 January 2007 the appellant was sentenced to five months’ imprisonment, the learned magistrate having adopted a starting point of six months’ imprisonment and giving the appellant a one-month discount for his clear record.  The magistrate said in his Statement of Findings that he did not consider a suspended sentence, probation order or community service order were appropriate in this case in view of the seriousness of the offence, the defendant’s responsibility in the business and because he had been found guilty after trial.  The appellant now appeals against the sentence.  He was admitted to bail pending appeal on 22 January 2007.

The appeal

3.Mr Gordon Wong, appearing for the appellant, submitted a six-page skeleton submission on behalf of the appellant and submitted a list of authorities comprising seven cases.  At the hearing of the appeal, counsel did not take me through his skeleton submission nor any of the cases that he submitted.  He submitted that the five months’ sentence was manifestly excessive and mentioned the mitigating factors present in the instant case.  He finished by saying that his client did not deserve a five-month sentence.  He had to be reminded by me that counsel should not make comments like that in court and he should phrase his submission so that it appeared to be a submission to the court rather than commenting on whether his client deserved the penalty imposed.

The magistrate’s findings

4.The magistrate quoted the case of The Secretary for Justice v. Choi Sai Lok, CAAR2/1999 where the Court of Appeal held that custodial sentences of immediate effect should be imposed for these offences unless the circumstances can truly be said to be exceptional.  The magistrate said in his Reasons of Sentence that :

“

I kept in mind that the defendant was 31 years of age, he was the proprietor of the shop in question, which I found was operating out of a shopping arcade, and he had known all along that he was renting out infringing discs in breach of the owners’ copyright without a licence.  He had also been found guilty after trial and he had not been frank in his evidence.  I also found that whilst the probation report was favourable, community service was suggested, the defendant had a clear record, and the discs was small in number and they were not the main business of the shop, these were not ‘exceptional circumstances’ as referred to by Keith JA.  I also did not find the defendant’s personal circumstances amounted to an exceptional circumstance. ...”

5.Mr Wong, in his written submission, asked the court to substitute the sentence of imprisonment with a community service order or a sentence less than that imposed.  I find that the sentence of imprisonment imposed by the magistrate was neither wrong in principle nor manifestly excessive.  The only question is whether a community service order would be an appropriate penalty in this case.

Suitability for community service

6.The guidance given by the Court of Appeal in England in R. v. Brown (1981) 3 Cr.App.R. (S) 294 on what offenders are suitable for community service was considered by the Court of Appeal in HKSAR v. Chow Chak Man and another [1999] 2 HKC 659 on 23 April 1999 where the court comprised Nazareth VP, Mayo and Rogers JJA.  Nazareth VP, in his judgment for the court, said at page 663 :

“	The guidance given in Brown indicates that the offenders who can be said to be best suited to community service orders will :
	(1)	be either a first offender, or one with a ‘light’ criminal record;
	(2)	come from a stable home background, perhaps with a family;
	(3)	have a good work record — orders are not designed to encourage the lazy; or to show the idle, the errors of their ways;
	(4)	be in employment, or have a realistic prospect of such;
	(5)	have shown genuine remorse; or
	(6)	present no more than a slight risk of re-offending.
	It is to be observed that these characterisations are alternatives.”

7.That case was followed by HKSAR v. Wong Yiu Kuen [2001] 1 HKC 486 on 27 February 2001 where the Court of Appeal comprised Stuart-Moore and Mayo VPP.  Mayo VP, writing the judgment of the court, said at page 491 :

“

There is a further problem regarding Chow Chak Man.  It is referred to in the third edition of Cross & Cheung’s Sentencing in Hong Kong at p 75.  There is an error.  It is that according to the commentary an ideal candidate for community service requires any one of six factors to be present before an offender can be said to be suitable for such an order.  This is of course quite wrong.  All the factors must be satisfied.”

8.In HKSAR v. Ting Kong Ho, CAAR9/2000, the Court of Appeal comprising Wong, Woo JJA and Cheung J (as he then was) on 3 July 2001 considered the cases of Brown, Chow Chak Man and Wong Yiu Kuen.  The court in Ting Kong Ho concluded that the decision in Wong Yiu Kuen was correctly decided.

9.Quite clearly, the decision of the Court of Appeal in Wong Yiu Kuen (affirmed in Ting Kong Ho) is binding on all lower courts.

Decisions of the Court of First Instance

10.In HKSAR v. Li Shui Keung, HCMA150/2002, McMahon DJ (as he then was) on 6 May 2002 also considered the criteria stated in Brown and stated that there was some previous confusion in the authorities in Hong Kong as to whether all or only some or one of the conditions in Brown were required to be satisfied before a community service order became appropriate, but it now appeared from Wong Yiu Kuen that the issue was settled.  McMahon DJ was also of the view that all the factors must be satisfied.  In that case the appellant was also convicted after trial and he continued to assert his innocence during the sentencing procedure.  There was nothing before the magistrate suggesting remorse.  McMahon DJ was of the view that the magistrate was right to reject a community service order as being inappropriate.

11.In HKSAR v. So Oi Kwan, HCMA482/2004, Lunn J also had occasion to consider this point on 24 September 2004.  He considered the decision of Bokhary J in HKSAR v. Choy Yau Pun [2002] 4 HKC 309 when she said :

“

That is not to say that a community service order can never be made unless precisely those factors are present.  For example, it can be the case that a young man cannot rely on having a wife and child or a job being available to him, but can rely just as strongly on his youth and a university place being available to him.”

Lunn J agreed with Bokhary J and said that the guidance set out in Brown was just a guidance and not a strait-jacket.

Conclusion

12.I agree with the magistrate’s observation that the appellant did not plead guilty and his evidence during the trial was not accepted and it was only after his conviction and he was interviewed by the probation officer that he admitted that he knew the subject matter of the charge were infringing copies and he was doing it to make a profit from his shop.  The magistrate found that he had not been frank in his evidence and therefore that he had not shown genuine remorse for having committed the offence.  I agree that the magistrate was correct in his conclusion that a community service order was not appropriate in this case.  The appeal against sentence is therefore dismissed.

Ms Teresa Kam, GC of Department of Justice, for HKSAR

Mr Gordon Wong, instructed by Messrs Rowland Chow, Chan & Co.,for the Appellant