HKSAR v. Li Tsz Lok and Others

DCCC 1063/ 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1063 OF 2008

_________________________

Reasons for Sentence
In respect of D6, D7 & D8

_______________________

The pleas

The 3^rd charge

1.D6, D7 and D8 plead guilty to this charge of possession of pirated discs with a view to its being sold or let or hire by any person for the purpose of or in the course of any trade or business without the licence of the copyright owner of the work, contrary to sections 118(1)(f)(i) and 119(1) of the Copyright Ordinance, Cap. 528.  This is the 3^rd charge. 

The 14^th, 15^th and 10^th  charges

2.D6, D7 and D8 also plead guilty to these respective charges of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115 and by virtue of Regulation 2 of the Immigration Regulations.

The facts

The 3^rd charge as against D6, D7 and D8

3.On 23 June 2008, D6, D7 and D8 possessed a quantity of pirated optical discs (“PODs”) with a view to their being sold or let for hire by any person for the purpose of or in the course of trade or business.

4.Between 21 and 23 June 2008, D6, D7, and D8 delivered plastic bags to two buildings in Wan Chai.  On 22 June 2008, D6 and D7 went to a flat at 2/F, No. 40 Cross Street, Wan Chai (“Storage Centre”).  D6 left the Storage Centre with a black plastic bag. 

5.On 23 June 2008, D6 collected a plastic bag from a male at Tai Wo Street, Wan Chai and went to the Storage Centre.  D8 left the Storage Centre with a black plastic bag.  Later on, D6, D7, and D8 were arrested by Customs and Excise (“C & E”) officers in Wan Chai.  They were escorted to the Storage Centre. 

6.D7 possessed 2 keys to open the wooden door of the Storage Centre.  There were 4,009 suspected PODs.  Among them 1,020 discs in total were confirmed to be PODs:

(1)  538 TV game discs;

(2)  239 CD-ROM (software);

(3)  94 DVD-R (software);

(4)  149 PC game discs.

7.D6’s fingerprint was found on one of the black plastic bags in the Storage Centre.  D8 possessed four marked $100 banknotes used by C & E in one of the test buy operations on 23 June 2008 in the outlet in Wan Chai.  The outlet was at Shop 143, Upper Ground Floor, 298 Computer Zone, Kwong Sang Hong Building (Block A), No. 298 Hennessy Road, Hong Kong

The 14^th, 15^th and 10^th charges as against D6, D7 and D8 respectively

8.The Immigration Department confirmed that D6, D7 and D8 were allowed to stay in Hong Kong as visitors for 14 days.  During their stay they could not take up any employment, whether paid or unpaid, and they could not establish or joint any business without the permission of the Director of Immigration.  At the material time, they did not have such permission. 

D6’s  circumstances

9.D6 is now 34 years of age.  He has a clear record in Hong Kong. His family is in Mainland China.  He has no relatives in Hong Kong.  He is married and has 3 teenaged children.  He was a decoration worker before arrest.  After arrest, his wife has taken up a storekeeper’s job in a supermarket to support the family.  He did not realize that copyright offences are taken so seriously in Hong Kong.  He was given the illicit employer’s mobile phone number by a friend in Mainland China.  He contacted the employer when he arrived in Hong Kong.  He was hoping to earn $200 to $300 per day. 

D7’s circumstances

10.D7 is now 17 years of age.  She has a clear record in Hong Kong.  At the time of the offence she was 16 years and 11 months of age.  After one year at a senior technical school in Mainland China, she quit for want of study interest.  Before arrest, she lived with her parents, who ran a shop selling garments.  She has a teenaged younger brother.  Her father has a friend, whom she would contact or live with when in Hong Kong.    This was her second time to Hong Kong.  She was introduced to the illicit job by a schoolmate’s father.  She took up the job out of boredom in Hong Kong.  Her parents are very concerned about her.  They have come to Hong Kong specifically to be interviewed by the Probation Officer.         

D8’s circumstances

11.D8 is now 30 years of age.  She has a clear record in Hong Kong.  Her parents are farmers.  After completing F.1, she took up various unskilled jobs until she became a skilled metal worker.  Six years ago while cohabiting with her boyfriend, she gave birth to a son.  Her boyfriend has already left her.  She entrusted her son to the care of her parents in the country when she worked and resided in the city.  In one of her previous trips to Hong Kong, she came to know a friend.  During her present trip to Hong Kong, this friend arranged for her the illicit job.  She would earn $200 to $300 per day.  She had worked 7 days but only received 5 days’ pay when she was arrested.  She committed the offence out of momentary greed.

The principles of sentencing

Sentence for possessing PODs

12.The leading case is Secretary for Justice v Choi Sai Lok [1999] 4 HKC 334.  It was an application by the prosecution for review of sentence.  In one charge, the 1^st Respondent pleaded guilty to possessing, as a courier, 719 PODs.  The 2^nd Respondent pleaded guilty to two charges.  One charge was that he was in possession, as a courier, of a total of 644 PODs The other charge was that he was in possession of the keys to a storage centre where a total of 22,963 PODs and various paraphernalia for labeling, pricing and packing were found.  Keith JA said, at 340:

We have no doubt that a distinction should be drawn between the proprietors of retail outlets and warehouses who commit these offences, and the persons employed by them.  The former should receive longer sentences than the latter.  But where we disagree with the judge is in the distinction which he drew between salesmen on the one hand and couriers on the other.  The roles played by storemen, packers, delivery men and salesmen may be different, but we do not see much difference between them in terms of criminal culpability.  What will justify differences in sentences between them will be, for example, the number of infringing copies involved, the length of time in which they had been engaged in the trade and factors personal to them such as pleas of guilty. 

13.There were no tariff sentences but Keith JA regarded that the correct starting point in the case of the 1^st Respondent would have been 12 months' imprisonment and in the case of the 2^nd Respondent would have been 18 months' imprisonment.

Saving of prosecution’s preparation time

14.In Choi Sai Lok (supra), Keith JA regarded as a mitigating factor an early indication of a plea of guilty.  He said, at 342:

The preparation of a case of this kind for trial involves considerable efforts in locating the copyright owners of the infringing copies, and obtaining confirmation from them that they are indeed the copyright owners and that the copies seized were not produced under licence.  That caused Mortimer JA in [R v ] Li Wan Kei [CA 13/1997] to say:

It may be that … if there is a full indication of an intention to plead guilty at the very outset which avoids all the elaborate preparation and expense for trial, this also will be reflected in the sentence passed.

We agree with that observation.

Sentence for breach of condition of stay

15.It is customary for the Court to impose 2 months’ imprisonment upon a plea of guilty.  Examples abound.  One that is often cited is HKSAR v Xie Chun Mei [2004]  1 HKLRD 865 where a two-way permit holder taking up prostitution was sentenced to 2 months’ imprisonment.  In HKSAR v Zhang Minghua MA547/2006, Xie Chun Mei (supra) was applied to a two-way permit holder who worked in a restaurant in Hong Kong.  He was sentenced to 6 weeks’ imprisonment.  Deputy Judge M. Poon made the passing remark, at para. 8, that it was “unduly lenient”. 

Sentencing a young resident of Mainland China to prison

16.There is the issue of whether a young offender like D7 from Mainland China shall be sent to prison.   Section 109A(1) of the Criminal Procedure Ordinance, Cap. 221, provides that:

No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

17.It means a term of imprisonment should only be the last option for a young offender under 21 years of age.  The issue is whether the sentencing court shall call for suitability reports to explore the chance of rehabilitation of young offenders.  The essence is the after-care supervision.  However, for a defendant who will leave Hong Kong when the sentence is over, rehabilitative sentences are not feasible.   

Young age

18.D7’s age is raised a ground of mitigation.  She claims to be born on 13 July 1991, hence only aged 16 years and 11 months on 23 June 2008 when she committed the present offences.  In Re Applications for Review of Sentences [1972] HKLR 370, Leonard J, at 417, explained the relevance of young age:

The personality, youth or personal circumstances of the offender may pale into significance because of the magnitude or prevalence of the offence in question.

19.In HKSAR v Wong Wan Cr App 384/ 2000, the applicant was a pregnant woman who might have to deliver her baby in prison.  That case dealt with the offence of possession of firearm without licence.  While commenting on the relevance of personal circumstances as matter of general mitigating principle, cons VP put in a word of caution by adopting the reasoning in Lam Hak-hung v R Cr App 724/ 1972 where the Court found: 

It has been said time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he has embarked upn the manufacture of dangerous drugs or involved in trafficking in dangerous drugs.  Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old – people who may have some ground for pleading for the mercy of the court if they are in fact arrested.

Concurrent or consecutive sentence

20.In Attorney General v Cheung Pit-yiu CAAR 11/1988, Cons VP stated, at para. 6, as follows:

This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly he said to have been committed in the course of a single transaction.

21.The defence in mitigation refers me to HKSAR v Xie Chun Mei CACC 285/ 2003.  In that case, the sentence for breach of condition of stay was ordered to run consecutively to other sentences.  The defence concedes that, subject to totality, our present case which involves a copyright offence and a breach of condition of stay should also call for consecutive sentences.  I do not think that can be correct.   In  Xie Chun Mei  (supra), the applicant took up prostitution in Hong Kong, so she was in breach of a condition of stay.  In the course of her stay in Hong Kong, while she worked as a prostitute, she committed the crimes of blackmailing and stealing from customers.  There was actually no link between her prostitution on the one part and the blackmail and the theft on the other part. There was why the breach of condition of stay warranted a consecutive sentence. 

Totality

22.In R v McKechan [2004] EWCA Crim 212, David Clark J said:

5. The principle of totality, that is the principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending …

23.In HKSAR v Zhen Futing Cr App 509/2003, the applicant was charged with two offences of possession of arms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty.  Stock JA observed that:

18.  Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality.

The sentence I pass

24.As regards the 3^rd charge, D6, D7, and D8, I take a starting point of 12 months’ imprisonment in each case. 

25.I give a one-third discount for their plea of guilty and clear record.  I give them a further month’s discount for their early indication of their plea of guilty in saving substantial preparation to prove copyright.  This will bring the sentence down to 7 months.   

26.D7’s solicitor has mitigated on the ground of her age.  I have considered the general principle expressed in Wong Wan (supra) citing Lam Hak-hung, I have no hesitation in rejecting it.  Even younger children have always been targeted to help commit copyright offences.  D7 was old enough to know better than to commit any copyright offence or any breach of the condition of stay.  I do not regard her age, at 16 years and 11 months at that juncture, as a mitigating factor. 

27.Besides, as she is not a local resident, she will not benefit from any after-care program, which is the core measure for the rehabilitative regime run by the Social Welfare Department or the Correctional Services Department.     

28.There are no other mitigating factors.   The sentence is 7 months’ imprisonment for each of D6, D7, and D8.           

29.As regards the respective charges for breach of condition of stay, I take a starting point of 3 months’ imprisonment.  I give a one-third discount for their plea of guilty.  This will bring the sentence down to 2 months.  

30.As to the issue of whether the sentences should be concurrent or consecutive, the observations in Cheung Pit-yiu (supra) and Xie Chun-mei (supra) are apposite.  The facts of our present case can be readily differentiated from Xie Chun-mei (supra) where the two-way permit holders committed other offences outside the scope of their prostitution job.   D4, D5, and D11 here were in breach of the condition of stay by running errands for the copyright piracy syndicate.  The errands were, no more and no less, the copyright offence itself.  The offences ought to call for concurrent sentences.  Hence I order that each of D6, D7, and D8 will serve a fully concurrent sentence for the corresponding charges that relate to each of them.