Chan Yiu-sai v. The Queen
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CACC000772/1976
----------------- Coram: Leonard J. in Court. Date of Judgment: 6th August, 1976. ----------------- JUDGMENT ----------------- 1. I allowed this appeal against a sentence of three months' imprisonment and a fine of $1,500 imposed by the learned magistrate on the appellant's plea of guilty to the offence of possession for the purpose of trade or business of infringing copies of sound recordings in which copyright existed contrary to Section 5(1) of the Copyright Ordinance and substituted for the immediate custodial sentence a sentence of six months' imprisonment suspended for two years and increased the fine to $12,000. I promised to give my reasons in writing. 2. The appellant was on the 26th February 1976 the sole proprietor of what is described in the agreed statement of facts as a "big retail shop" dealing in stationary, cassette tapes and records when the shop was raided by Copyright Unit officers of the Hongkong Preventive Service. Of 780 cassette tapes and 90 gramophone records seized 544 tapes and 85 records were found to be spurious. Although the appellant's premises were described as a "big retail shop" it was not disputed by the Crown that the appellant employed only one salesgirl to whom he paid a mere $650 per month he himself earning about $1,100 per month. It is not clear from the agreed statement of facts whether he earned $1,100 per month from the retail shop as a whole or whether that sum represented his monthly profit of the sale of infringing goods. In a cautioned statement however he admitted that on sales of infringing products his rate of profit was in the region of 50 per cent. He immediately admitted his offence (he had little choice) and although 44 years of age had a clear record. As Mr. Lucas, in seeking to support the learned magistrate's decision to impose an immediate custodial sentence indicated, the Legislature has made it abundantly clear by an amendment to the Copyright Ordinance passed in October 1975 that offences under that Ordinance are not to be taken lightly. Before October 1975 a custodial sentence could not be imposed on a first offender. That is no longer so and this change on the part of the Legislature and the setting up of a special unit to combat such offences alike show that in the minds of both of the Legislature and the administration deterrent sentences and in appropriate cases immediate custodial sentences are desirable. It is clearly my duty and the duty of magistrates to obey unhesitatingly the dictates of the Legislature and to have due respect for the views of the administration in such matters. 3. That accepted, is this a case that calls for an immediate custodial sentence? I cannot see that it is. It is noteworthy that, as Mr. Lucas conceded, no immediate custodial sentence had been inposed on a first offender in any case before this brought under the Section. The Section (under which an immediate custodial sentence may since October 1975 be imposed on a first offender) covers a multitude of sinners against Copyright; the sin is possession but possession may lie on the manufacturer, the exporter, the distributor right down to the retailer a rather small way. I cannot agree that the Legislature intended to indicate the necessity for an immediate custodial sentence in a case such as this. 4. It is necessary to retain a sense of proportion and to have regard to the facts of each case. Where possession is for the purpose of retailing within the Colony the public damage which ensues is less that it is where possession is for purposes of export. The commercial good name of the Colony is not so seriously affected as it would be if the infringing goods are tobe exported or even as it would be if the infringing goods were passed off as genuine originals. I am assured that such is not the case here. The articles for sale were Mr. Lucas concedes obviously inferior and not to be confused with the genuine by anyone having a knowledge of recording. The owners of the copyright in the pirated songs then are the essential sufferers. They have their civil remedy, a remedy too seldom invoked it may be thought, but they are also, as is the victim of any theft, entitled to the protection of the criminal law particularly where, as here, the civil remedy is difficult to enforce. Hence sentences must be deterrent; and I should unhesitatingly have dismissed this appeal if the appellant's possession was as manufacturer, exporter or wholesaler. 5. However since he is a retailer only, since he is a first offender, and there has not heretofore been any immediate custodial sentence imposed on a first offender, since he pleaded guilty, so that the necessity of proving copyright was avoided, and was co-operative the immediate custodial sentence imposed appears to me to have been manifestly excessive. 6. I consider the requirement of deterrence is met by the increase in the custodial sentence I have imposed its suspension for two years and by the very considerably increased fine. It is unlikely that this appellant will offend again - for at least two years. 7. I am grateful to Mr. Edward Chan and to Mr. Lucas for their assistance.
Representation: Edward Chan (T.S. Tong & Co.) for the appellant. M. Lucas, Ag. D.D.P. for the Crown/respondent. |