HKSAR v. TAI YUK FUNG, WINKY

CACC 33/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.33 OF 2006

(ON APPEAL FROM DCCC NO. 924 of 2005)

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BETWEEN

HKSAR

Respondent

and

Tai Yuk Fung, Winky (戴旭峯)

Applicant

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Before: Hon Stuart-Moore VP and Yeung JA

Date of Hearing: 5 December 2006

Date of Judgment: 5 December 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background and charges

1. On 16 January 2006, the applicant, aged 35, pleaded guilty before Deputy District Judge A Yuen to four closely related copyrightoffences. He was sentenced to a total of 2 years and 8 months’ imprisonment against which he now seeks leave to appeal.

2. The offences were committed on 9 September 2004. The applicant was intercepted and found to have in his possession, inside theplastic bags he was carrying, 14 computer game discs, 621 CD-ROMs, and 112 MP3 discs (1st charge). In addition, he had a bunch of keys which resulted in two premises, both in Mong Kok, being searched with a positive result. In the first of these, where the applicant had been intercepted at Room 601 in Wealth Commercial Centre, 18 computer game discs,163 CD-ROMs and 22 MP3 discs were found (2nd charge). Charges 1 and 2 alleged possession for the purpose of, or in the course of, any trade or business of an infringing copyof a copyright work with a view to committing any act infringing the copyright without the licence of the copyright owner, contraryto section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap. 528 (‘the Ordinance’).

3. At the same premises as the items in the 2nd charge were found, officers attached to the Customs and Excise Department found 10 sets of CD duplicators, each with a CD-ROM drive,and 7 CD writers together with 2,022 blank compact discs (4th charge). In the case of these items, the applicant was charged with possession of articles knowing or having reason to believe thatthey were used or intended to be used to make infringing copies of any copyright work for sale or hire or for use for the purposeof, or in the course of, any trade or business, contrary to section 118(8) and section 119(2) of the Ordinance.

4. After the items the subject of these three charges had been discovered, the applicant explained that he had been employed to pickup goods from Wealth Commercial Centre and deliver them to Flat A, 7/F, Shun Fung Building. He then led the customs officers tothis other address. Here, further infringing copies of copyright works were found, namely 189 computer game discs, 2,420 CD-ROMsand 204 MP3 discs, which were, like charges 1 and 2, charged under sections 118(1)(d) and 119(1) of the Ordinance (charge 5).

5. In a later interview, the applicant admitted having been employed for about three weeks to carry out the work of collecting anddelivering materials which were in breach of copyright. He was paid, he said, $200 for each delivery and he had delivered goodson about 5 or 6 occasions.

6. The judge, treating the applicant as a person of previous good character, imposed concurrent sentences of 8 months’ imprisonmenton the 1st and 2nd charges to run concurrently also with a sentence of 2 years’ imprisonment on the 4th charge. On the 5th charge, as this involved “another address”, the judge passed a sentence of 8 months’ imprisonment which he ordered to run consecutively,bringing the total term to 2 years and 8 months.

Grounds of appeal

7. Two complaints are raised against the sentence in the grounds of appeal advanced by Ms Charlotte Draycott. Firstly, it was submittedthat the 2-year sentence was “excessive” for the 4th charge and, secondly, it was contended that the 8-month sentence on the 5th charge should not have been made consecutive. We will take these grounds in turn, but it is right to indicate that Mr Eddie Sean,on the respondent’s behalf, responsibly accepted that there was merit to both grounds.

8. Ms Draycott relied upon this court’s decision in HKSAR v Lee Yuk Chun, CACC 487/2004 (unreported) where the facts were remarkably similar to the present case. There, the appellant’s sentence had beenreduced by the sentencing judge from a starting point of 3 years to 2 years’ imprisonment for the offence brought under sections 118(8) and 119(2) of the Ordinance. This court, however, reduced this to 18 months’ imprisonment, indicating that a starting point of 30 monthswas appropriate for that offence and that the one-third discount for the plea of guilty should be increased by 2 months for the timeand expense saved by the appellant’s early indication of a guilty plea.

9. Unlike the position in Lee Yuk-chun, the applicant in these proceedings had done nothing to merit more than a one-third discount. He had, of course, admitted his guiltin the course of his interview but when he appeared in the District Court for the first time, on 20 September 2005, it was indicatedthat he would plead not guilty to all the charges. It was not until 14 December 2005 that pleas of guilty were offered on his behalfby which time the prosecution had carried out further preparatory work which, in cases of this kind, is often extensive. In thisregard, the court in Lee Yuk-chun, had conveniently cited a passage from Secretary for Justice v Choi Sai-lok [1999] 4 HKC 334 at 340-341 which bears repetition here as it seems, from all the papers before us, that no previous sentencing decisions were referredto in the court below.

10. The judgment, starting at paragraph 11 in Lee Yuk-chun, reads:

“11. As is clear from Secretary for Justice v Choi Sai Lok (1999) 4 HKC 334, offences such as these call for an immediate custodial sentence save where the circumstances can truly be said to be exceptional. The court made the further points that :

‘We have no doubt that a distinction should be drawn between the proprietors of retail outlets and warehouses to commit these offences,and the persons employed by them. The former should receive longer sentences than the latter. But where we disagree with the judgeis in the distinction which he drew between salesmen on the one hand and couriers on the other. The roles played by storemen, packers,delivery men and salesmen may be different, but we do not see much difference between them in terms of criminal culpability. Whatwill justify differences in sentences between them will be, for example, the number of infringing copies involved, the length oftime in which they had been engaged in the trade and factors personal to them such as pleas of guilty.

What must be stated is that an assertion by a defendant that he is a mere employee of the business will not warrant the suspensionof an otherwise appropriate sentence of imprisonment. In this context, it is well to heed the wise words of Leonard J in Ng Wai Ching :

“The typical case is one where a young man with no previous convictions is employed to sell the goods from a small shop for a salary. When arrested and charged he pleads guilty and says that he had not been employed there for long. The employers are not broughtto justice despite claims in mitigation that the salesman gave as much information as he could to investigators… It is very unfortunatethat, despite their efforts the Customs and Excise appear to have been unable so far to catch the big fish of the trade and can onlybring the minnows before the courts. Without their salesmen, however, the big fish cannot operate and so the salesmen must be deterred. Experience has shown that they are not deterred by fines, so that resort needs to be had to custodial sentences, even where theoffender is a young person with a clear record.”

That is a clear echo of the thinking behind the sentencing, for example, of couriers in the narcotics trade.

……

There is one further point which we wish to add. The preparation of a case of this kind for trial involves considerable efforts inlocating the copyright owners of the infringing copies, and obtaining confirmation from them that they are indeed the copyright ownersand that the copies seized were not produced under licence. That caused Mortimer JA in Li Wan Kei to say :

“It may be that… if there is a full indication of an intention to plead guilty at the very outset which avoids all the elaboratepreparation and expense for trial, this also will be reflected in the sentence passed.”

We agree with that observation.’

12. This was a manufacturing operation, albeit apparently of moderate size, in which the appellant had been engaged for some timeand those serious aspects of the case required reflection in the approach to sentencing. Nonetheless, we have perused a significantnumber of cases for like offences and, with one exception, the starting points adopted, especially for the second and third offences,are materially higher than those normally adopted for an operation of this size and the role played by this particular appellant. Whilst an immediate custodial sentence was, without doubt, demanded, this was an offence committed by a person acting in the capacityof an employee and aged 49 years without previous convictions for any offence, let alone offences of this nature, and she co-operatedfully with the authorities intimating at an early stage that she would plead guilty.”

11. We feel sure that if counsel for the prosecution or the defence in the court below, neither of whom appear in the present proceedings,had made reference to Lee Yuk-chun, the judge would, as a matter of principle, have followed what was indicated by the Court of Appeal as being the appropriate sentencefor a case such as this. Having regard to the applicant’s role in this scheme, 20 months’ imprisonment would have been the propersentence to have imposed, following a plea of guilty.

12. As to the second ground, bearing in mind that the applicant was concerned with two separate addresses unlike the appellant in Lee Yuk-chun who was only concerned with one, we consider that some additional penalty was called for although not to the extent of a wholly consecutivesentence. This was, when compared to many other breach-of-copyright operations, not a particularly large-scale operation and theadded sophistication to the operation resulting from the extra premises used by the syndicate was not in our opinion worthy of anadditional 8-month sentence. This feature of the case arose from facts which are closely connected, all occurring on the same day. We bear in mind also that the applicant led the customs officers to the second set of premises although in our view this was a matterof small importance having just been caught with the goods in charges 1, 2 and 4 and with the keys for the other location where additionalgoods of the same kind were being stored.

Conclusion

13. We shall grant leave. Treating the hearing as the appeal, the appeal is allowed. We shall reduce the sentence on charge 4 to 20months. The sentences on charges 1 and 2 will continue to run concurrently with this. In regard to charge 5, we shall quash theorder for the sentence of 8 months to be served wholly consecutively. In its place, we shall order that 4 months of the sentenceis to be served consecutively. This will leave an overall sentence of 2 years’ imprisonment.

(M. Stuart-Moore)
Vice-President

(Wally Yeung)
Justice of Appeal

Mr Eddie Sean, SADPP, of the Department of Justice, for the Respondent.

Ms Charlotte Draycott, instructed by the Director of Legal Aid, for the Applicant.