Attorney General v. Ko Siu Mei
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CAAR000013/1976
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 3rd July 1976. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. It is well known that the offence of possession for the purpose of trade or business of pirated cassette tapes and gramophone records is extremely prevalent in Hong Kong. What the Attorney General here seeks are guidelines from this Court, for the benefit of magistrates, as to the scale of penalty which should normally be applicable. Any such guidelines can only be broad for the reason that in this type of offence, as in most others, the facts as well as the circumstances of the offender vary from case to case. 2. The present case, involving as it does a girl of 18 with a clear record and about whose financial circumstances almost nothing was known, cannot be said to be the most suitable to have been put before this Court for such purpose since such a person can only be said to be atypic. The case may however serve as a peg, if not a very convenient one, upon which to hang a tentative exercise. 3. In general it is to be observed that the Legislature takes a serious view of these offences. That is apparent from the fact that prior to the 1975 amendment the maximum penalty for a first offence was a fine of $500 for each infringing article with a maximum of $50,000 in total. That penalty may have been though to have been severe enough but that the Legislature did not so consider, it is apparent from the fact that by Ordinance 66 of 1975 the maximum penalty was increased to a fine of $1,000 for each infringing copy (no maximum total being provided and a term of imprisonment of up to twelve months. In the context of pirated cassette tapes and gramophone records with retail values of approximately $6.50 and $8 each respectively, these may be said to be Draconian penalties but it must be remembered that the Copyright Ordinance is concerned not only with cassettes and records. 4. We have not been given any indication of the incidence of recidivism in regard to this type of offence. It should be apparent to magistrates that persons brought before the courts for a second or subsequent time charged with this offence have been able to absorb any previous fine as an over-head expense and that those fines have been insufficiently intimidating to discourage effectively a resumption of the trade. In such instances very severe penalties such as would deter repetition are merited. So far as first offenders are concerned the very prevalence of this offence over what is now a long period of time indicates that deterrence can properly be aimed not only at the offender but at others likely to be tempted into the same trade. It is impossible to be dogmatic because we are unaware of the facts of the individual cases contained in the schedule of the penalties imposed in some eleven cases which was put before this Court by Mr. Sceats for the Crown and which is attached as a schedule to this decision. Prima facie, however, it may be said that the fines contained in that schedule, which stops at 26th February 1976, are lenient whereas the very omnipresence in the Colony of this type of offence requires that the fines imposed should "bite". 5. Having said that we can appreciate the difficulty in which magistrates are placed in determining the fine to be imposed if the facts as to the financial circumstances of the offender are as scant or non-existent as they were in this case. The principle that fines imposed should bear a relation to the capacity of the defendant to pay is not to be waived because the maximum penalties for this offence are high and have recently been made higher. Where imprisonment is thought by the court to be the appropriate penalty, well and good. But where imprisonment is not thought appropriate there must be no de facto sentence of imprisonment by virtue of the fact that the fine imposed is quite beyond the resources of the defendant so that he must inevitably go to prison in default of payment. The offender's incapacity to pay is sometimes referred to as a mitigating factor. In truth it is more than that. It is a preventive factor. The object of having regard to incapacity to pay is to prevent an offender, in circumstances where a prison sentence is not deemed warranted, from being sent to prison, not for his offence but for his impecuniosity or relative impecuniosity. To avoid exactly that result, the Court of Criminal Appeal in Reg. v. Churchill(1) reduced a fine of £2,000 to one of £100. 6. In this respect the courts need assistance from the prosecution and certainly in the present case the learned magistrate got none. All that he knew in regard to the respondent's financial resources was that she claims to be the proprietress of the shop from which the pirated goods were seized, that the shop contained at least 477 cassette tapes and nine records and that her margin of profit upon each was $1.50. 7. Mr. Sceats argued that the shop must have been subject to a rental and that it must have contained fittings. That is true but what was the rental and what were the fittings? Was the shop of the type huddled under a staircase or was it a more commodious shop and if so how commodious? What was the total size of its stock? How many assistants were visible? What was the apparent scale of its operation, its turnover? Some of these matters were visible; others might have been ascertained. None of them were placed before the learned magistrate who, in the absence of any knowledge of the respondent's resources, imposed a fine which he knew it was within her ability to pay since it represented the amount of her bail money. 8. We do not suggest that it is the duty of the Crown in these cases to make a searching enquiry as to the means and capacity to pay of a defendant. But upon his pleading guilty it should be perfectly possible for the Crown, and it would assist the court, to include in the statement of facts put before the court those matters which are patent and are clearly known to the Crown. Indeed this is true whether the defendant pleads guilty or not guilty. Once the magistrate is given some idea of the scope of the enterprise he is in a position, otherwise unattainable, of being able to make some estimate of the fine appropriate to the offence. The next question is whether the fine is appropriate to the offender or is of such a nature that it will result in automatic imprisonment as a result of genuine inability to pay. At this stage it would be unwise for a magistrate to announce a fine and then listen to submissions by or on behalf of the defendant as to why the fine cannot be met because at that stage the magistrate will probably be functus officio. Probably the better course is to ask the defendant "is there any reason why you should not pay a fine of $__?" naming the figure which the magistrate considers appropriate to the offence. Thereafter, if no submissions be made, that fine can be imposed; alternatively if credible reasons are advanced as to why the fine is beyond the capacity of the offender to pay, the fine can be tailored to the circumstances of the offender. 9. In these cases the Crown can greatly assist by putting before the court all the facts known to it and not merely, as in this case, some of them. 10. Prima facie it may be said that the fines imposed between November 1975 and February 1976 inclusive appear to have been lenient but if fines which appear to the Crown to be more realistic are to be imposed then the courts must have assistance from the prosecution in regard to the apparent means and ability to pay of the defendants brought before the courts. 11. In the present case we gave both the Crown and the respondent the opportunity of putting forward evidence, by way of affidavit, of the respondent's ability to pay a greater fine than that of $1,000 imposed. The respondent took the opportunity of filing an affidavit. The Crown did not but we permitted cross-examination by the Crown of the respondent upon her affidavit. In the result it is quite apparent that the substitution of any higher fine by this court would result in the respondent having to go to prison for mere inability to pay. Hence this application must be dismissed. At the same time we trust that the observations which we have made will give some guidance to magistrates and result, where the ability to pay is demonstrated and a prison sentence is not considered appropriate, in fines higher than those which have recently been imposed. Fines under Copyright Ordinance
Representation: Sceats for Crown/applicant Respondent in person. (1) 1966 2 All M.R. 215 221. |