HKSAR v. BEST SUCCESS HOLDING LTD

HKSAR v. BEST SUCCESS HOLDING LTD

The court exercised its s132 discretion by accepting a payment in lieu of outright forfeiture as equitable, ordered return of certain items (items 9–16), ordered forfeiture of other items (items 23–28) subject to conditionality, and required payment of HK$1.3 million to the Government by 1 February 2005; the decision balanced deterrence, enforcement objectives and the defendant's financial and employment consequences.

Citation
HKSAR v. BEST SUCCESS HOLDING LTD
Parties
Prosecution: HKSAR; 1st Defendant: Best Success Holding Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 January 2005
Case Number
DCCC47/2003
Procedural Posture
Criminal Forfeiture/confiscation Application Under Copyright Ordinance / Post Conviction Application for Confiscation Order
Outcome
Partial return and conditional forfeiture with payment in lieu accepted: items 9–16 returned, items 23–28 forfeited to the Government unless full payment of the fine is made, and defendant to pay HK$1,300,000 to the Government by 1 February 2005.
Legal Topics
Forfeiture Under S132 Cap 528, Offences Under S118 Cap 528, Payment in Lieu of Forfeiture, Sentencing and Deterrence, Undue Hardship Consideration
Source Language
EN
Copyright Law Criminal Law Forfeiture/confiscation Law Forfeiture Under S132 Cap 528 Offences Under S118 Cap 528 Payment in Lieu of Forfeiture Sentencing and Deterrence Undue Hardship Consideration

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Parties

HKSAR

Prosecution

Best Success Holding Limited

1st Defendant

Procedural Posture

Criminal Forfeiture/confiscation Application Under Copyright Ordinance / Post Conviction Application for Confiscation Order

Legal Issues

  1. 1 Whether to order forfeiture of six production lines used to make infringing VCDs under s132 Cap 528
  2. 2 Whether payment in lieu of forfeiture is acceptable and, if so, the amount and conditions
  3. 3 Whether articles should be returned, forfeited or otherwise disposed of taking account of deterrence and hardship

Ratio Decidendi

The court exercised its s132 discretion by accepting a payment in lieu of outright forfeiture as equitable, ordered return of certain items (items 9–16), ordered forfeiture of other items (items 23–28) subject to conditionality, and required payment of HK$1.3 million to the Government by 1 February 2005; the decision balanced deterrence, enforcement objectives and the defendant's financial and employment consequences.

Court Disposition

Partial return and conditional forfeiture with payment in lieu accepted: items 9–16 returned, items 23–28 forfeited to the Government unless full payment of the fine is made, and defendant to pay HK$1,300,000 to the Government by 1 February 2005.

Orders

  • Items 9 to 16 to be returned to the 1st Defendant
  • Items 23 to 28 to be forfeited to the Government unless the 1st Defendant made full payment of the fine