HKSAR v. CHAN MARK

DCCC317/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 317 OF 2011

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HKSAR
v.
Chan Mark

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Before: H H Judge Geiser

Date: 12 October 2011 at 11.31 am

Present: Ms Mickey Fung, SPP of the Department of Justice, for HKSAR
Mr Tony Li, instructed by Tam & Partners, assigned by the Director of Legal Aid, for the Defendant

Offence: (1) & (3) Making for sale of an infringing copy of a copyright work without the licence of the copyright owner of the work (未獲版權作品的版權擁有人的特許而製作該作品的侵犯版權複製品)
(2) & (4) Selling an infringing copy of a copyright work for the purpose of or in the course of any trade or business withoutthe licence of the copyright owner of the work (未獲版權作品的版權擁有人的特許而為任何貿易或業務的目的或在任何貿易或業務的過程中,出售該作品的侵犯版權複製品)
(5) & (6) Possessing an article knowing or having reason to believe that it is used or is intended to be used to make infringingcopies of any copyright work for sale or hire or for use for the purpose of or in the course of any trade or business (管有任何物品,而知道或有理由相信該物品是用作或擬用作製作任何版權作品的侵犯版權複製品以供出售或出租,或以供為任何貿易或業務的目的或在任何貿易或業務的過程中使用)

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Reasons for Sentence

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1. Defendant, you have pleaded guilty to three charges under the Copyright Ordinance, those being Charges 3, 4 and 6 on the indictment.

2. Charge 3 is an offence of making for sale three infringed copies of a copyright work without the licence of the copyright owner,being three DVD recordables, contrary to sections 118(a) and 119(1) of the Copyright Ordinance, Cap.528, Laws of Hong Kong.

3. Charge 4 is an offence of selling infringed copies, being the DVD recordables named in Charge 3, without the licence of the copyrightowner of the works, contrary to sections 118(1)(d) and 119(1) of the Copyright Ordinance.

4. Charge 6 is an offence of possession of articles, namely a hard disk inside a desktop computer, and 6 external hard disks, containinga total of 267 copies of infringed works, 169 DVD recordables, containing a total 147 copies of infringed works, 6 Digital VideoDisc writers and a bundle of blank DVDs, knowing or believing that they were to be used for making infringed copies of copyrightworks, contrary to sections 118(8) and 119(2) of the Copyright Ordinance, Cap.528, Laws of Hong Kong.

5. The Summary of Facts, which you have admitted, establish that you set up a website available to the public on the internet wherebyinfringed copies of copyright works were available for hire.

6. On 27 May of last year, a Customs officer posing as a customer placed an order over the website for five DVDs. The following day,you met this customer near Kwun Tong MTR Station and gave him the five DVDs in return for HK$40. Three of the DVDs are infringedcopies of copyright works. These facts are the facts that constitute Charges 3 and 4.

7. Immediately after this transaction, you were arrested by another Customs officer and under caution you admitted the offences.

8. Your home was subsequently searched and the articles that are the subject matter of Charge 6 were found.

9. In a subsequent interview under caution, you told the Customs officer that you copied onto blank DVDs DVDs which you had rentedand set up the website for selling them over the internet. The profit that you made each month was between $500 and $1,000.

10. You are 32 years of age and have a clear criminal record. The reason for your committing these offences stems, I believe, fromyour inability to pay off large credit card bills due to the high interest rates, and therefore, in order to supplement your income,you engaged in the making and selling of pirated compact discs.

11. It emerges from the background report that I have before me that you have been doing this since 2008.

12. The background report and the mitigation put forward on your behalf speak of the unfortunate childhood that you have experienced. You have been brought up in a broken family, your parents divorcing when you were extremely young. Your childhood was unhappy whenyou lived with your father who remarried. For many years now you have been living with your paternal grandmother.

13. I have before me many letters of support from members of your family, all of which I have read, and I have been touched by the amountof support that you have. It is particularly sad that due to your involvement in these offences, that you were unable to marry yourgirlfriend at the end of last year. This did not materialise due to your arrest.

14. Offences such as these are serious and deterrent sentences are necessary in order to protect Hong Kong’s reputation in the distributionand sale of copyright works. There is clearly an international obligation here also which Hong Kong needs to be able to satisfy.

15. In sentencing you, I take all that has been put before me by way of mitigation, including your plea of guilty, which is an indicationof your remorse, and your clear record. I also of course take account of the fact that this was not a large scale operation, andthe amount of profit that you gained was small.

16. On Charge 3, I adopt a starting point of 9 months’ imprisonment, which, due to your plea of guilty, I will reduce by one-third,coming to 6 months’ imprisonment on Charge 3.

17. On Charge 4, my starting point is one of 6 months’ imprisonment, which will be similarly reduced by one-third, arriving at 4 months’imprisonment. I order these sentences to run concurrently with each other.

18. With regard to Charge 6, my starting point is one of 12 months’ imprisonment, which I reduce by one-third again to reflect yourplea of guilty, coming to 8 months’ imprisonment on Charge 6.

19. Due to the question of totality of sentence and to reflect the overall criminality involved, I order 4 months of the 8 months onCharge 6 to run concurrently with the sentence on Charge 3 and the balance of 4 months consecutively, arriving at an overall sentenceof 10 months’ imprisonment in all.

H H Judge Geiser
District Judge