Ho Jimmy v. The Queen
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CACC001191/1976
Coram: Briggs, C.J. Date of Judgment: 3rd November, 1976. ----------------- JUDGMENT ----------------- 1. The appellant pleaded guilty to two offences under the Copyright Ordinance, one contrary to section 5(1) and one contrary to section 5(2) of that Ordinance, and to one offence under section 3 (1) (e) of the Merchandise Marks Ordinance. He was sentenced to a fine of $10,000 or six months for the first offence, to a consecutive period of twelve months for the second offence and to a concurrent period of twelve months for the offence against the Merchandise Marks Ordinance. 2. The appellant had nearly 800 cassette tapes which infringed copyright and, in addition, he had equipment which would enable him to make 31 music cassette tapes in one recording and, moreover, the equipment was such that it worked at twice the normal speed of recording. This, of course, would enable the appellant to make a very large number of tapes in a very short time. 3. The appellant admitted that he had been engaged in this operation for three years and had invested in his business about $10,000. Each music cassette tape was sold by him for $5. 4. In addition, in respect of the third offence, the appellant had twelve blocks for the purpose of forging the trademark of a well-known Japanese company. 5. Mr. Henry Yuen, who appeared for the appellant, stated that this was the first case for these offences in which an immediate custodial sentence had been passed. Until 1975 it was not possible to pass such a sentence for a first offence. However, the law was amended in 1975 and it is now possible to do so. 6. Mr. Yuen drew the Court's attention to the case of CHAN Yiu-sai (1). In that case, the Court allowed the appeal against a sentence of three months' imprisonment and a fine of $1,500 imposed upon the appellant's plea of guilty to the offence of possession of copies of sound recordings in which a copyright existed. The Court allowed the appeal to the extent of substituting for the immediate custodial sentence a sentence of six months' imprisonment suspended for two years. They also increased the fine. In the judgment in that case it was made clear that the reason for the substitution of a suspended sentence for the custodial sentence was that the appellant, in that case, was a retailer only and was a first offender. The Court held that the case was not of a serious enough nature to warrant an immediate custodial sentence. 7. This is not the case in the present appeal. The facts show that a considerable business had been carried on for a long period of time. There is, in the present case, no evidence that the cassette tapes made by the appellant were for export. But he was carrying on a substantial business in making illegal cassette tapes. There is also the fact that he was in possession of the blocks for printing the forged trademark. 8. In my view, though there has not been a case under these sections in which an immediate custodial sentence has been passed previously, this is a case where such a sentence is proper. It is obvious from the amendment of the law in 1975 that these offences, which are only too common in Hong Kong, should be met with deterrent sentences in proper cases, of which this is one. This appeal is therefore dismissed.
Representation: Henry YUEN (Hon & Co.) for Appellant. Lucas for the Crown/Respondent. (1) Criminal Appeal No. 722 of 1976. |