HKSAR v. Li Lin and Another

DCCC664/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 664 OF 2009

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Reasons for Sentence

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 1.The 1st defendant has pleaded guilty and has been convicted of charges 1, 2, 4, 5 and 7.  The 2nd defendant pleaded guilty to and has been convicted of charges 4, 6 and 7. 

2.The facts of this case are very straightforward.  On 16 February this year, the 1st defendant was stopped coming out of a room of an industrial building in Kwai Chung.  He was found to be in possession of a bag containing 268 infringing copies of various items.  After he was arrested, he led the Customs officers into that room where they found the 2nd defendant dealing with packing some infringing discs.  Inside this room the Customs officers found over 9,000 blank recordable discs and 13 sets of disc duplicators with writers and a DVD drive for each duplicator.  There was also packing material.  There were also 1,000-odd infringing copies of various items.  Amongst that figure, there were 500-odd discs of an obscene nature.

3.Both the 1st and 2nd defendant were taken back to the Customs & Excise offices and interviewed.  They both made full admissions and what they admit is set out in the Summary of Facts. 

4.Both these defendants had arrived in Hong Kong the day they were arrested.  I accept that both were mere workers and not the bosses of this operation.  However, workers enable this type of illegal activity to continue and to grow.  Copyright infringement is a serious offence and harsh sentences are required to deter this activity.  Deterrents are required to try and protect the reputation of Hong Kong. 

5.Now, looking at the facts and exhibits involved, this was not a small but it is not a large-scale operation.  I have heard mitigation put forward on behalf of both defendants.  Both defendants are related, have family in mainland China and were hoping to improve their financial situations.  Both defendants, having pleaded guilty, their pleas of guilty are their best mitigation today. I do note both defendants have clear records, however, that is not surprising bearing in mind they are not Hong Kong residents. 

6.I have looked at many authorities in determining sentence including the Secretary for Justice v Choi Sai Lok [1999] 4 HKC 334 and The HKSAR v Lee Yuk Chun, CACC487 of 2004 as well as HKSAR v Tai Yuk Fung, Winky CACC33 of 2006.  These authorities have similar facts, a similar number of infringing copies and exhibits.  The scale of the operations in these authorities bear some similarities to the facts here and the defendants in those cases and those authorities were also workers as opposed to masterminds.

7.Having considered the authorities, the facts of this case and mitigation put forward, I will deal with the sentences in this manner:-

For charge 1, I take a starting point for the 1st defendant of 15 months.  For charge 2 which the 1st defendant faces, a starting point of 30 months.  Charge 4, of which both defendants face this charge, a starting point of 15 months.  For charges 5 and 6, a breach of condition of stay offence, I take a starting point of 3 months.  For charge 7 both defendants face, I take a starting point of 15 months. 

8.Both defendants are entitled to discount of one-third for their pleas.  With offences of this nature there are authorities that have considered an extra discount of 2 months earned when early plea is indicated and the prosecution has been spared extensive preparatory work required for this type of offence. 

9.The 1st defendant indicated his plea of guilty to all charges he faced at the first opportunity.  On that date, the 2nd defendant only indicated she would plead to her breach of condition of stay charge.  The 2nd defendant, not until the second appearance in the District Court did she indicate a plea to offences.  By that time the prosecution had prepared the bulk of the work necessary.  The 2nd defendant should not benefit from any further discount but the 1st defendant should not lose that opportunity. 

10.The 1st defendant will get a discount of one-third from the starting point plus an extra 2 months discount for each offence except charge 5, the breach of condition of stay offence. 

11.The 2nd defendant will only benefit from a discount of one-third from the starting point.

12.Both defendants please stand up.  The 1st defendant, charge 1, you are ultimately sentenced to 8 months’ imprisonment.  Charge 2, 18 months’ imprisonment.  Charge 4, 8 months’ imprisonment.  Charge 5, 2 months’ imprisonment.  Charge 7, 8 months’ imprisonment.  Charges 1, 4 and 7 will be concurrent to charge 2.  Charge 5, the breach of condition of stay offence, will be ordered to be served consecutively to charge 2.  That would mean a total of 20 months’ imprisonment.

13.2nd defendant, listen carefully.  For charge 4, the 2nd defendant will be sentenced to 10 months’ imprisonment.  Charge 6, sentenced to 2 months’ imprisonment.  Charge 7, sentenced to 10 months’ imprisonment.  Charges 4 and 7 will be ordered to run concurrently.  Charge 6, 2 months for breach of condition of stay, will be ordered to be served consecutively to the 10 months of charges 4 and 7.  That is a total of 12 months’ imprisonment.