Case Detail

CACC000173A/1999

	CACC 173/1999	CACC 536/1999
	CACC 36/2000	CACC 51/2000
	CACC 52/2000	CACC 56/2000
	CACC 13/1999	CACC 27/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 173 & 536 OF 1999,
NOS. 36, 51, 52 & 56 OF 2000 AND NOS. 13 & 27 OF 1999

(ON APPEAL FROM DCCC 1359/1998, 640/1999, 1128/1999, 808/1998,
1152/1998, 129/1998, 1123/1998 & 1020/1998)

_____________________

CACC 173/1999

BETWEEN
	HKSAR	Respondent

	AND

	WU WEI-CHENG	Applicant

_____________________

CACC 536/1999

BETWEEN
	HKSAR	Respondent

	AND

	POON NGOK-MING	Applicant

_____________________

CACC 36/2000

BETWEEN
	HKSAR	Respondent

	AND

	YAN LAM-KWAN	Applicant

_____________________

CACC 51/2000

BETWEEN
	HKSAR	Respondent

	AND

	NGAI KA-TAK	Applicant

_____________________

CACC 52/2000

BETWEEN
	HKSAR	Respondent

	AND

	NGAI KA-TAK	Applicant

_____________________

CACC 56/2000

BETWEEN
	HKSAR	Respondent

	AND

	TAM KA-KUI	Applicant

_____________________

CACC 13/1999

BETWEEN
	HKSAR	Respondent

	AND

	CHUI KWOK-KEUNG	Applicant

_____________________

CACC 27/1999

BETWEEN
	HKSAR	Respondent

	AND

	CHEUNG CHI-MING	Applicant

_____________________

Coram: Hon. Stuart-Moore VP, Wong & Woo JJA

Date of Hearing: 6 April 2000

Date of Judgment: 6 April 2000

_______________

J U D G M E N T

_______________

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

1. The consolidation of these eight applications arises because all of them are concerned with offences in breach of copyright and exactly the same point on appeal arises in relation to the first six of them.

2. The Applicants in CACC 173/1999, 536/1999, 36/2000, 51/2000, 52/2000 and 56/2000 are represented. It is convenient to deal with these applications first of all.

3. In the first application, CACC 173/1999, the Applicant originally abandoned his application seeking leave to appeal against conviction and, on 8 September 1999, his sentence application was dismissed in this court. The Applicant now seeks leave to treat his abandonment of the application relating to conviction as a nullity. He was charged firstly with possession of obscene articles, namely 357,679 video compact discs ("VCDs") for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. The second charge related to the Applicant's possession, for the purpose of trade or business, of infringing copies of copyright works, namely 92,242 VCDs, with a view to committing any act infringing the copyright licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap. 528 ("the Ordinance"). The Applicant was convicted after trial in the District Court and he was sentenced on 22 March 1999 to fifteen months' imprisonment on the first charge and to three years' imprisonment on the second, with two years of this sentence to run consecutively, making three years and three months in all.

4. In the second application, CACC 536/1999, the Applicant pleaded guilty in the District Court to possessing 13,287 music compact discs and 100 VCDs which were infringing copies of copyright works, contrary to section 118(1)(b) and section 119(1) of the Ordinance. He was sentenced on 5 October 1999 to twenty months' imprisonment. He now seeks leave to appeal against conviction out of time.

5. In the third application, CACC 36/2000, the Applicant pleaded guilty in the District Court to a charge brought under the same sections of the Ordinance relating to the second application. In this case, the particulars related to 255,154 VCDs for which he was sentenced on 7 January 2000 to two years' imprisonment. The Applicant now seeks leave to appeal against conviction.

6. In the fourth and fifth applications, CACC 51/2000 and 52/2000, the Applicant is the same person.

7. In the fourth application, CACC 51/2000, there were two charges which were brought under the same sections of the Ordinance, namely sections 118(1)(d) and 119(1), and related to 78,138 VCDs and 244 compact discs in the first charge and to 14,735 VCDs in the second. The Applicant pleaded guilty in the District Court to both charges. He was sentenced on 9 November 1998 to concurrent terms totalling two years and four months.

8. In the fifth application, CACC 52/2000, there were two charges and again the Applicant pleaded guilty to them when he appeared in the District Court. The first was brought under section 118(1)(d) and section 119(1) of the Ordinance. This related to 25,047 music compact discs and to 60,000 VCDs. The second charge related to the possession of obscene articles under section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, namely 25,890 VCDs. On 2 December 1998, the Applicant was sentenced, in overall effect, to serve an additional one year and eight months to the sentence passed in CACC 51/2000, making the combined total sentence involved in these two applications four years' imprisonment. The Applicant in the fourth and fifth applications now seeks leave out of time to appeal against these convictions.

9. In the sixth application, CACC 56/2000, the Applicant was convicted after trial in the District Court of possessing infringing copies of copyright works, namely 35,033 VCDs and 4,369 music video compact discs, contrary to sections 118(1)(d) and 119(1) of the Ordinance. On 28 August 1998, he was sentenced to ten months' imprisonment. He now seeks leave out of time to appeal against conviction. In his case, he is currently serving terms of imprisonment in relation to other offences which are not affected by this application.

10. In all six applications the point which has arisen in relation to the offences brought under sections 118(1)(d) and 119(1) is one with which the court is familiar having, on 7 March 2000, dealt with the consolidated appeals in CACC 38/2000 and 67/2000 where the same point arose.

11. It is conceded by Mr Zervos, who appears on the Respondent's behalf, for the same reasons given by this court in CACC 38/2000 and 67/2000 that the convictions with which we are concerned in the first six applications cannot stand.

12. It is unnecessary to rehearse in any detail what was said in the judgment given on the last occasion. Suffice it to say, offences charged under section 118(1) which are subject to the penalties provided by section 119(1) of the Ordinance are summary offences which, unless accompanied by an indictable offence, cannot be, and should not have been, transferred to the District Court. The provisions of section 88(1) in Part IV of the Magistrates Ordinance, Cap. 227 were not complied with. Putting this another way, the District Court had no jurisdiction over these offences unless they were transferred to the District Court with an indictable offence giving the District Court jurisdiction, under the provisions of sections 74 and 75 of the District Court Ordinance, Cap. 336, to deal with them.

13. It is only right to say that the section 118(1) offences under the Ordinance were transferred at a time when it was believed they were indictable offences and, as soon as the mistake was realised, the Department of Justice was the first to bring attention to the problem which had arisen.

14. In CACC 173/99 and CACC 52/2000, the first and the sixth of these applications, the charges brought under the Ordinance were accompanied by offences charged under section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance. However, these were summary offences and were transferred to the District Court because it was believed that the section 118(1) offences under the Ordinance were indictable. Accordingly, the District Court had no jurisdiction to deal with these offences now that it has been established the section 118(1) offences were not indictable.

15. The purported transfers of all the charges relating to the first six applications were therefore null and void because the magistrates who transferred them had no jurisdiction to do so. Jurisdiction over all these offences therefore remains vested in the magistrates' court.

16. The error which has arisen in all of these cases seemingly came about because on 27 June 1997, the Copyright Ordinance, Cap. 39 was replaced by the present Ordinance, Cap. 528. Section 5(1) of Cap. 39 was replaced by section 118(1) of Cap. 528. However, while offences under section 5(1) of the old ordinance were liable to certain penalties on conviction on indictment, no provision was made for section 118(1) offences to be tried on indictment. This explains where the error was made in all of these six applications.

17. Turning now to the remaining applications, the seventh application, CACC 13/1999, where the Applicant appears in person seeks leave out of time to renew an appeal against conviction and to appeal against sentence. These applications are misconceived. In fact, the Applicant has today indicated that he does not wish to proceed on his application relating to conviction and we can formally indicate, if need be, that we dismiss this application because, on 30 August 1999, this court dismissed the application after a hearing as to its merits. He was charged, firstly, with possession 60,339 VCDs which were infringing copies of cinematograph films, contrary to section 5(1) of the Copyright Ordinance, Cap. 39, and, secondly, with a similar charge brought under the same section, relating to 4,948 compact discs. These charges, on which he was found guilty after trial, were indictable and the transfer to the District Court was perfectly proper. He was sentenced on 21 December 1998 to a total of two years' imprisonment. His co-defendant received a lower sentence in order that his plea of guilty could be reflected in the sentence imposed on him. There are no grounds for giving leave out of time in relation to the sentence application. It appears that it was an application prompted as the result of letters received by the first six applicants, and may be others, from the Department of Justice which were sent to them in order to point out the procedural error that had been made in having their cases transferred to the District Court. The procedural error did not apply to the Applicant in CACC 13/1999 although he probably thought that it did.

18. In the eighth application, CACC 27/1999, precisely the same position applies as it did to the previous application, CACC 13/1999. The Applicant was convicted in the District Court of possessing 59,188 VCDs and 12,988 music compact discs which were infringing copies of works in which copyright subsisted. The offence was brought under the provisions of section 5(1) of the Copyright Ordinance, Cap. 39. This was an indictable offence with which the District Court had jurisdiction to deal. The Applicant was sentenced on 12 January 1999 to a term of two years' imprisonment. The Applicant was originally seeking leave to treat the abandonment on 7 July 1999 of his application for leave to appeal against conviction as a nullity. This was not pursued and we can dismiss it. In addition, he now seeks leave to appeal out of time against sentence. However, this does not appear to have been an appropriate application. Mr Zervos pointed out there had been a previous such application which the Applicant abandoned and, in effect, we are therefore being asked to treat his previous abandonment as a nullity. There is no merit to the application whatever and we do not propose to give leave to do so. Again, he appears to have been prompted to make his application by having read a letter from the Department of Justice to another applicant, whoever he may be, who merited a letter being sent to him.

19. Accordingly, for the reasons we have given, the convictions which were recorded in CACC 173/1999, 536/1999, 36/2000, 51/2000, 52/2000 and 56/2000 must be quashed. For these purposes, we treat the abandonment of the application for leave to appeal against conviction as a nullity in CACC 173/1999, we give leave out of time in CACC 536/1999, 51/2000, 52/2000 and 56/2000 and we give leave in CACC 36/2000. Treating this hearing as the appeal, we allow the appeals in each of those cases and quash the convictions.

20. In CACC13/1999 and 27/1999, we refuse leave and those applications are dismissed.

(M. Stuart-Moore)	(Michael Wong)	(K.H. Woo)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr Kevin Zervos, SADPP, of the Department of Justice for the Respondent.

Mr William Allan, instructed by the Legal Aid Department, for the Applicant in CACC 173/1999, CACC 536/1999, CACC 36/2000, CACC 51/2000, CACC 52/2000 and CACC 56/2000.

Applicants in CACC 13/1999 and CACC 27/1999 appeared in person.

CACC000173/1999

CACC 173/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 173 OF 1999

(ON APPEAL FROM DCCC 1359 OF 1998)

BETWEEN
	HKSAR

	AND

	WU WEI-CHENG

---------------------------

Coram: Hon Nazareth V-P, Stuart Moore V-P and Keith JA in Court

Date of Hearing: 8 September 1999

Date of Judgment: 8 September 1999

----------------------

J U D G M E N T

----------------------

Nazareth V-P (giving the judgment of the Court) :

1. The applicant, Wu Wei-cheung, was convicted by His Honour Judge Davies in the District Court on 22 March 1999 of two offences, first, possession of obscene articles for the purpose of publication, contrary to s.21(1)(b) of the Control of Obscene and Indecent Articles Ordinance (Cap. 390), the particulars being that he on the 5th day of August 1998 at Flat 1201, 12th floor, Sing Win Factory Building, 15-17 Shing Yip Street, Kwun Tong, Kowloon, in Hong Kong possessed obscene articles, namely 357,679 video compact discs for the purpose of publication. The second charge was for possession for the purpose of trade or business of infringing copies of copyright works with a view to committing an act infringing the copyright without the licence of the copyright owner, contrary to s. 118(1)(d) of the Copyright Ordinance (Cap. 528). The particulars were that he on the 5th day of August 1998, at Flat 1201, 12th Floor, Sing Win Factory Building, 15-17 Shing Yip Street, Kwun Tong, Kowloon, Hong Kong, without the licence of the copyright owner had in his possession for the purpose of trade or business infringing copies of copyright works, namely, 92,242 video compact discs of films with a view to selling them. He was sentenced to 15 months imprisonment on the first charge and on the second, to 3 years, 12 months of which were ordered to run concurrently with the sentence on the first charge, making a total of 3 years and 3 months. He now seeks leave to appeal against sentence having abandoned his application for leave to appeal against conviction which was accordingly dismissed.

2. The facts can in the first instance be stated quite shortly and in that respect are not in dispute. Indeed, all the prosecution did at the trial was to put in the agreed summary of facts which was admitted in evidence under s.65C of the Criminal Procedure Ordinance (Cap. 221). This in effect left the matter to the applicant to establish statutory defences under s.22(1)(e) of the Control of Obscene and Indecent Articles Ordinance and s.118(5) of the Copyright Ordinance respectively. The judge found that neither had been made out and convicted him.

3. The facts that need to be stated are these. On 5 August 1998, the date mentioned in the charges, officers of the Customs and Excise Department, acting under a search warrant, found in the Flat No. 1201 mentioned in the charges, a total of 1,012,335 video compact discs (VCDs) stored in cartons stacked inside the flat. Among these were the VCDs specified in the two charges. The flat belonged to the applicant's sworn sister. The applicant admitted to having rented the storage space from his sworn sister for $12,000. The applicant was not in Hong Kong at the time of the search. Subsequently he wrote on two occasions to the Commissioner of Customs and Excise, asking for the release of the VCDs that had been seized.

4. He is a national and a resident of the Mainland. When he visited Hong Kong in November 1998 he was interviewed in the presence of a solicitor by an officer of the Customs and Excise Department. During this time, under caution he admitted that he had stored "his goods" at his sworn sister's premises. He identified the place where he had stored "his goods" from photographs shown to him by the officer. He mentioned that some of them belonged to a company on the Mainland, and that somebody had entrusted him with conveying the VCDs to the Mainland. His reward, he said, was to be the transportation fees which he would be paid. He also said that he had been employed as a driver and been sent to Hong Kong in the capacity of someone who was not concerned with the transportation of these items, but only to acknowledge receipt of the goods on their delivery to his sworn sister's premises. The latter, the judge noted, was in contrast to his telling the Customs and Excise Department on two occasions that the items were his, and in a later interview that he had been entrusted with conveying the goods to China and would be paid the transportation fees.

5. In sentencing him, having referred to the applicant being a resident of the People's Republic of China, the judge said that the number of VCDs involved was very substantial in each case, and attempts had been made to hide the obscene and infringing copies among a larger amount which was legitimate. He continued:

"To deal with the obscene material first. This trade appears to continue to flourish, even in the face of existing sentences, and obviously by reason of the very large number of items involved in this case was intended to constitute a substantial contribution thereto.

There is no question that an immediate custodial sentence is called for to bring it home to others, both here in Hong Kong and in China, that trade in this type of material will not be tolerated and will invariably result in immediate imprisonment. I take a starting point for sentence of 2 years' imprisonment after trial.

With regard to the offence of possessing material infringing copyright the number involved is again very substantial. This is a type of offence which has become prevalent and which has also become a matter of considerable concern to this community. Clearly Hong Kong's international reputation as a fair trading centre must be protected. Additionally, those who take a legitimate role in this industry and who reasonably expect to benefit from it need support and have their rights protected. I therefore take a starting point for sentence for this offence of 3 years' imprisonment after trial.
This defendant is 39 years old, married with one very young child. It has been quite fairly submitted on his behalf that he has been convicted following his failure to substantiate the statutory defences under these ordinances and that the prosecution's evidence went little further than to prove mere possession on his part, thereby placing the burden of proof upon him which he was unable to discharge."

The judge then came to the following paragraph that assumes considerable significance in the light of the submissions to which we shall turn. He said this:

"In sentencing this defendant I will bear in mind the totality principle of sentencing, the degree of obscenity, which I would place as in the medium range, and the substantial quantities of material involved both in respect of the obscene VCDs and the infringing copies.

Accordingly, for the 1st charge the defendant is sentenced to an immediate term of 15 months' imprisonment, and for the 2nd charge to a term of 3 years imprisonment, 12 months of which will be served concurrently to charge 1 and the balance consecutively, making a total term of 3 years and 3 months' imprisonment."

6. Mr Rupert Spicer, in pursuing the grounds of appeal, confines himself essentially to two main points. The first is pursued on the basis of an additional ground for which he obtained leave before us. It is in these terms: that the judge failed to take account sufficiently or at all that any factors which went to mitigation in respect of the 1st charge and resulted in a starting point of 2 years imprisonment being reduced to 15 months imprisonment, applied equally to the 2nd charge in respect of which the sentence of 3 years imprisonment adopted as the starting point for that charge was imposed in full.

7. The thrust of his submission can be seen from the following comparisons he made. In charge 1, the obscenity charge, there were 357,679 VCDs. In the 2nd charge, only 92,242. The maximum in sentence on the first charge was 3 years, and on the second, 4 years. The actual sentences imposed were 2 years on the first, and 3 years on the second. The 2-year sentence was reduced to 15 months while the 3-year sentence received no reduction at all.

8. Mr Spicer submits that having regard to the quantities and the criminality, there is a disparity which is required to be removed by according to the applicant a substantial reduction from the starting point of 3 years on the 2nd charge.

9. It has to be said that at first sight, it is difficult to see what reason there can be to justify the divergent results. That is not made any the easier by having to assess the relative criminality of offences so different in kind and the nature of the mischief with which they are concerned.

10. Fortuitously, at the end of the day, the answer seems to us to be found in the penultimate paragraph of the judge's reasons to which we have already drawn attention. It is quite clear from this that the judge came in the end to address the totality of the sentences. Having taken everything into account, he decided that the total sentence should be 3 years and 3 months, a substantial reduction from the 4 years and 3 months which the sentences would come to, if they had to be served consecutively to each other. In the light of that totality, which we think is unexceptional, the only view that can be taken of the sentence of 15 months, which is far from easy to explain, is that this was the judge's way of achieving his ultimate totality, or that in any event it was taken fully into account together with the sentence of 3 years in the total sentence imposed. Upon that basis, whatever view one takes of the ultimate individual sentences, there can be no quarrel with the reduced totality here. So that the net result would be the same; any reduction in the sentence on the 2nd charge would have been offset by a corresponding increase upon the 1st charge.

11. Upon that basis, we can see no reason to interfere with the sentence on the 1st ground.

12. Mr Spicer's second ground was that the overall sentence was manifestly excessive and wrong in principle. We can say quite shortly here, as we have already indicated, that we do not accept that the reduced totality is manifestly excessive.

13. Mr Spicer has urged upon us that the role of the applicant was that of a transporter or a person who took a minor role, and was not an organiser. But simply to regard him as a transporter would not do justice to the facts which showed quite clearly that he had not only arranged transportation for the very large quantity of VCDs, and procured the storage space from his sworn sister, but also that he was significantly knowledgeable in some of the information he gave to the Customs and Excise officers; in addition he himself regarded the VCDs as his discs. Clearly, he played a role that was significantly greater than that of a mere transporter. In the light of that, the starting point of 3 years against a maximum of 4 cannot be regarded as manifestly excessive, nor can the end result of 3 years and 3 months.

14. In those circumstances we do not regard the sentence as manifestly excessive nor do we see any error of principle. The application for leave to appeal against sentence is accordingly refused.

(G.P. Nazareth)	(M. Stuart Moore)	(Brian Keith)
Vice President	Vice President	Justice of Appeal

Representation:

Mr Kevin P. Zervos, SGC for Director of Public Prosecutions

Mr Rupert Spicer (DLA) for the Applicant

HKSAR v. WU WEI CHENG

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