HKSAR v. Nanzad, Zorigt

HCMA723/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.723 OF 2009

(ON APPEAL FROM ESCC 3068 OF 2009)

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BETWEEN

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Before: Deputy High Court Judge Geiser

Dates of Hearing:  8 October 2009

Date of Judgment:  8 October 2009

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J U D G M E N T

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1.The appellant, a Mongolian national, appeared before the Chief Magistrate on 11 August 2009 and pleaded guilty to two offences, those being: firstly, possession of 12 digital video discs, being infringing copies of copyright work, with a view to them being sold or let for hire by any person for the purposes of or in the course of any trade or business without the licence of the copyright owner of the work, contrary to section 118(1)(f)(i) and section 119(1) of the Copyright Ordinance, Cap. 528, Laws of Hong Kong; and secondly, breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115, Laws of Hong Kong, and by virtue of regulation 2 of the Immigration Regulations.

2.On the 1st charge, the appellant was sentenced to a term of 6 months’ imprisonment, and on the 2nd, 2 months, both sentences being ordered to run concurrently with each other.

3.The brief facts which the appellant acknowledged were simple, and indicated that the appellant arrived in Hong Kong on 27 June 2009. He was allowed entry as a visitor to stay for 14 days, subject to the condition that he should not take up employment or join any business. However, the following day, that is the 28th, he was seen by Customs officers selling infringing copyright DVDs to passers-by in Statute Square in Central. The number of infringing copies that are the subject matter of the 1st charge are 12.

4.By Notice of Appeal filed on 14 August 2009, the appellant appeals against the sentences imposed on the general grounds that they are too severe. In court before me today the appellant tells me that he considers the sentences to be too long, he is worried about the welfare of his wife and family in Mongolia as the winter has already set in, and he has difficulty in walking due to a problem with his leg which requires surgery.

5.With regard to the 1st charge, the learned Chief Magistrate referred to the case of Secretary for Justice v Choi Sai Lok [1999] 4 HKC 334 and correctly stated that an immediate custodial sentence was called for in cases such as this. However, with the greatest of respect to the learned Chief Magistrate, a starting point of 9 months’ imprisonment for the possession of 12 infringing copies of DVDs for the purposes of sale is, in my judgment, manifestly excessive.

6.In this regard, I note particularly that in the Choi Sai Lok case the Court of Appeal imposed a sentence on the 1st respondent of 6 months’ imprisonment for possession of 719 infringing copies of VCDs, and terms of 6 months and 9 months’ imprisonment on the 2nd respondent who was in possession of 544 VCDs and 21,763 VCDs respectively. In that case the Court of Appeal held that the length of sentence should be determined by factors such as the number of infringing copies involved, the length of time the offender has been engaged in the trade and the factors personal to the offender, such as his plea of guilty.

7.I take all of these matters into account, and accordingly, in my view, a starting point of 3 months’ imprisonment on the 1st charge is appropriate. I would discount this by one-third, coming to 2 months’ imprisonment on Charge 1, taking account of the appellant’s plea of guilty to this charge. The appeal against sentence on Charge 1 is therefore allowed, and I substitute a sentence of 2 months’ imprisonment for the 6 months imposed on Charge 1.

8.With regards to the sentence on Charge 2, a sentence of 2 months’ imprisonment is entirely appropriate, and I do not interfere with it. However, it seems to me that the learned Chief Magistrate was over-generous by ordering the sentences on both charges to run concurrently with each other. The sentence on the 2nd charge should properly have been ordered to run consecutively to the sentence on the 1st charge.

9.Accordingly, I order the sentence on both charges to run consecutively to each other, arriving at a total sentence of 4 months’ imprisonment. The appeal against sentence is allowed to this extent.

Ms Mickey Fung, SPP of the Department of Justice, for the Respondent

Appellant, in person