Hong Kong Case Law: Decisions & Judgments

Topic

Possession of infringing copies

Legal area

Court

8 Oct 2009

HKSAR v. NANZAD, ZORIGT

Citation

HKSAR v. NANZAD, ZORIGT
Court

Court of First Instance
Case number

HCMA723/2009

The starting point for possession of 12 infringing DVDs is 3 months imprisonment; after allowing a one‑third discount for the guilty plea the sentence on that charge is reduced to 2 months; the 2 month sentence for breach of condition of stay is affirmed; the two sentences should run consecutively rather than concurrently, producing a total effective sentence of 4 months imprisonment.
9 Jun 2009

HKSAR v. LAM KIN KI

Citation

HKSAR v. LAM KIN KI
Court

Court of First Instance
Case number

HCMA243/2009

The court held the magistrate did not err in principle in adopting the chosen starting points or in the sentencing exercise; given the appellant's record and that an offence was committed while on bail the aggregate effective sentence of 18 months' imprisonment was appropriate and not manifestly excessive; appeal dismissed.
6 Aug 2007

HKSAR v. YAU SHUI KWAN BONNIE AND ANOTHER

Citation

HKSAR v. YAU SHUI KWAN BONNIE AND ANOTHER
Court

Court of First Instance
Case number

HCMA532/2007

The magistrate was entitled to draw an irresistible inference of possession against D3 given his senior position, role as creative director, presence as the person in charge when Customs entered, the nature of the seized software and the office layout; those facts proved custody or control beyond reasonable doubt. The same facts were insufficient as to D2: her status as accountant and signatures on company documents created suspicion but did not prove custody or control of the computers and programs, so her conviction was quashed.
2 Aug 2007

HKSAR v. LAU HAK SHING

Citation

HKSAR v. LAU HAK SHING
Court

Court of Appeal
Case number

CACC245/2006

The Court upheld the trial judge's factual findings that the applicant was actively aware of and participated in Highway's manufacturing operations and was in possession of seized discs and equipment; the prosecution proved absence of licences from copyright owners; once the applicant's primary account of non‑involvement was rejected beyond reasonable doubt, the statutory defence under s.118(3) did not arise. Accordingly the convictions on Charges 2, 3 and 4 were maintained and the appeal dismissed.
12 Dec 2006

HKSAR v. XIE, YAOHUI

Citation

HKSAR v. XIE, YAOHUI
Court

Court of First Instance
Case number

HCMA1031/2006

The court upheld the magistrate's sentencing approach: starting points of 9 and 18 months for the two copyright offences reduced to 6 and 12 months respectively for guilty pleas, and a 3 month starting point for the immigration offence reduced to 2 months; those sentences properly reflected the gravity and mitigation and the appeal is dismissed.
5 Dec 2006

HKSAR v. TAI YUK FUNG, WINKY

Citation

HKSAR v. TAI YUK FUNG, WINKY
Court

Court of Appeal
Case number

CACC33/2006

Leave to appeal was granted and the appeal allowed: the sentence on charge 4 (possession of articles for making infringing copies) was reduced to 20 months; sentences on charges 1 and 2 remain concurrent with charge 4; the wholly consecutive 8‑month sentence on charge 5 was quashed and replaced with a 4‑month consecutive term, producing an overall sentence of 24 months imprisonment. The reduction reflected the appellant's role as an employee, relevant comparative authority, and the applicant's limited mitigation on timing of plea.
18 May 2005

HKSAR v. LEE YUK CHUN

Citation

HKSAR v. LEE YUK CHUN
Court

Court of Appeal
Case number

CACC487/2004

The Court held that although an immediate custodial sentence was required, the original total sentence of two years was manifestly excessive for an employee of moderate‑scale manufacturing operation with good character who cooperated early; allowing the appeal in part the appropriate total sentence after discount for plea and cooperation is 18 months imprisonment to run concurrently.
6 Jan 2005

HKSAR v. ZHUANG XIAOLUO

Citation

HKSAR v. ZHUANG XIAOLUO
Court

Court of Appeal
Case number

CACC265/2004

Leave to appeal was allowed and treated as the substantive appeal. Charges 1 and 3 (making/possession for sale) sentences of 10 months each were upheld. Charge 2 (possession of article intended to make infringing copies) starting point should have been 24 months reduced to 16 months to reflect plea; under s83I(3) the effective sentence for Charge 2 is 16 months. Charges 6 and 7 (breach of condition of stay: one day overstay and illegal employment) had a proper starting point of 9 months reduced to 6 months each for plea, to be served concurrently with each other but consecutively to the sente…
19 Aug 2004

HKSAR v. CHAN TAK TIM

Citation

HKSAR v. CHAN TAK TIM
Court

Court of Appeal
Case number

CACC7/2004

The court refused leave to appeal: the s121 affirmation was sufficiently compliant (corporate authors and domicile descriptions were acceptable and the exhibited discs satisfied s121(15) as object code can be embedded in discs); any limited non‑compliance would only affect the non‑compliant part; the prosecution proved subsistence of copyright and ownership; overwhelming circumstantial evidence supported the convictions, which are not unsafe.
6 Jul 2004

HKSAR v. LAM SHUEN SHUEN AND ANOTHER

Citation

HKSAR v. LAM SHUEN SHUEN AND ANOTHER
Court

Court of First Instance
Case number

HCMA435/2004

The Magistrate's findings were not unsafe: he was entitled to infer A1's constructive knowledge from the evidence and to distinguish roles between employee and owner; PW2's statement was admissible in existing form because English counterparts were present and s65C applied; sentencing fell within established ranges so A2's sentence was upheld while A1's lesser role and mitigation justified immediate release.