Hon. Yeung, J.A. (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Introduction
引言

The applicant Chan Cheong Kit, the 2nd defendant Lo Yiu Wai (“Lo”) and the 3rd defendant Fung Man Hei (“Fung”) were tried together before Chief District Judge Patrick Li for 7 offences under the Copyright Ordinance, including:-
申請人陳昌杰和第二被告人羅耀偉（“羅”）及第三被告人馮文禧（“馮”）在區域法院首席法官李瀚良席前同被控七項違反《版權條例》的控罪，包括：-

Conspiracy to sell infringing copies of a copyright work;
串謀出售侵犯版權複製品；

Possession of an article used or is intended to be used to make infringing copies of a copyright work for sale or other purposes, including blank compact discs and compact discs writers,
管有用作或擬用作製作侵權複製品作出售等目的之物品，包括空白光碟和光碟燒錄器；

Making, together with other people, for sale or hire infringing copies of a copyright work;
和他人一起製作侵權複製品作出售或出租用；

Possession, together with other people, of articles used or intended to be used to make infringing copies of a copyright work for sale or other purposes, including about 8,000 blank compact discs, 18 compact discs replicators (each with 2 to 7 compact discs writers);
和他人一起管有可用作或擬用作製作侵權複製品作出售等目的之物品，包括近8,000張空白光碟，18台光碟生產機（每台配備二至七部光碟燒錄器；

Possession, together with other people, of infringing copies of a copyright work at Flat 12, 8th floor, Pacific Trade Centre;
和他人在太平洋貿易中心8樓12室管有侵犯版權複製品；

Possession, together with other people, of infringing copies of a copyright work at Flat I, 6th floor, Wing Lee Building, Kimberley Road; and
和他人在金巴利道永利大廈6樓1室管有侵權複製品；及

Possession, together with other people, of infringing copies of a copyright work at Room 6, Flat D8, 10th floor, Chung King Mansion.
和他人在重慶大廈10樓D8室6號房管有侵權複製品。

The applicant was additionally charged with the 8th charge, a  “money laundering” offence.  The money involved was 5 million odd dollars.
申請人被加控第八項“洗黑錢”罪，涉案款額500多萬元。

The applicant, Lo and Fung pleaded not guilty to all the charges but were convicted of all the charges on 7 May 2007.
申請人、羅及馮都否認全部控罪，但在2007年5月7日他們遭裁定控罪全部成立。

On 28 May 2007, Judge Li sentenced the applicant to 5 years and 7½ months imprisonment for the 1st charge to the 7th charge, and 4½ years imprisonment for the 8th charge, the “money laundering” offence, of which 6 months were to be served consecutively.  The applicant’s total term of imprisonment is 6 years and 1½ months.
2007年5月28日，李法官就第一至第七項控罪判申請人入獄5年7 ½ 個月及就第八項“洗黑錢”罪，判他入獄4年半, 其中6個月分期執行。申請人需服的總刑期為6年1 ½個月。

The applicant applied for leave to appeal against conviction and / or sentence.
申請人就定罪及/或判刑提出上訴許可申請。

At the commencement of this hearing, the applicant abandoned his application in relation to the conviction and that application was dismissed. This Court is only required to consider the application for leave to appeal against sentence.
開庭時，申請人放棄了就定罪的申請，該申請亦被撤銷。本庭只需考慮申請人就判刑的上訴許可申請。

Prosecution case
控方案情

Between August 2004 and August 2005, Customs officers put the following shops under surveillance: the shop at the lobby entrance, shop 102, shop 121 and shop 122 at the ground floor of Chung Kiu Commercial Building, Shantung Street, Kowloon.  In these 4 shops the wrapping covers of compact discs were displayed. The titles of infringing copies of compact discs, graphics and computer codes representing the titles of the infringing copies were printed on the wrapping covers.  Price lists showing the selling prices of various compact discs were also displayed.
2004年8月至2005年8月期間，海關人員監視九龍山東街中僑商業大廈地下大堂入口鋪，102，121和122號鋪。該四間店鋪展示光碟招紙套，上印有侵權光碟名稱、圖像及代表複製品名稱的電腦編碼、亦有展示價目表列出光碟售價。

Customers were provided with blank pieces of paper and pencils in these 4 shops for them to write down the computer codes of the compact discs which they were going to buy.  After a customer wrote down the code numbers, he handed the piece of paper to the shop assistant.  The shop assistant asked the customer to wait for a moment and then he could go to a corridor, a staircase, or an empty shop nearby to collect the infringing copies of compact discs which he ordered.
該四間店鋪亦向顧客提供白紙及鉛筆以便他們將購買的光碟電腦編碼寫下。顧客寫下編碼後會將紙交給店員。店員則囑咐顧客稍候在店鋪附近的走廊或樓梯或空鋪提取其預定的侵權光碟。

In this process the shop assistant would inform, by a mobile phone, the people working in a warehouse where the infringing copies of compact discs were kept the titles and quantities of the compact discs which the customers selected.  The warehouse people then followed the directions, packed the discs and made records.  After that, the discs would be delivered to the designated places and handed to the customers.
同時店員會用手提電話通知在侵權光碟貨倉工作的人員顧客已選擇的光碟名稱及數量。貨倉人員根據指示將侵權光碟包裝及記錄後，將它們送到指定地方交給顧客。

In fact, in 2004 and 2005 Customs officers had raided these 4 shops a number of times and they discovered infringing copies of compact discs were on sale there.  A number of undercover operations had been conducted, in which many Mainlanders sold pirated discs to undercover detectives.  The undercover operations ascertained the mode of operation of how pirated discs were sold in these 4 shops.
事實上，在2004年、2005年間，關員多次搜查該四間店鋪時，都發現有出售侵權複製光碟的情況。在多次卧底行動，亦有多名內地人士出售盜版光碟給卧底探員。卧底行動確立了上述四間店鋪售賣盜版光碟的模式。

The Customs officers observed that the applicant, Lo and Fung actively took part in managing the 4 shops and operating the business of selling compact discs.  The applicant was present there many times and had contacts with many people who had a hand in these crimes.
根據關員的觀察，申請人、羅和馮都有積極參與管理該四間店鋪和售賣光碟的業務。申請人亦多次出現並和參與罪行的多名人士有交往。

This criminal gang, besides running the shops where the compact discs were on sale and the warehouses where the compact discs were kept, also possessed manufactories for making infringing copies of compact discs.  The warehouses and the manufactories were situated at Flat 12, 8th floor, Pacific Trade Centre, 28 Kai Hing Road, Kowloon Bay; Flat I, 6th floor, Wing Lee Building, 27-33 Kimberley Road, Tsimshatsui; Room 6, Flat D8, 10th floor, Chung King Mansion, 40 Tsimshatsui and Flat 4B, 500 Shanghai Street, Kowloon.
犯罪集團除了管理出售光碟的店鋪及儲存光碟的貨倉外，亦管有製造侵權光碟工場。貨倉及工場設於九龍灣啟興道28號太平洋貿易中心8樓12室；尖沙咀金巴利道27-33號永利大廈6樓I室；尖沙咀40號重慶大廈10樓D8室6號房及九龍上海街500號4B室。

Documents and other exhibits seized in the dwelling place and the car of the applicant showed that the applicant actively participated in the crimes of infringing copyrights and pirating compact discs.
從申請人的住所及車輛檢獲的文件和其他證據都顯示申請人有積極參與侵權翻版光碟罪行。

The infringing copies of compact discs involved in this case were more than 70,000 copies; in addition, there were nearly 20 compact discs replicators, each with 2 to 7 compact discs writers.  When the Custom officers searched the warehouses and manufactories of these infringing copies of compact discs, they found a large number of two-way permit holders being engaged in the work of packing and making compact discs.
案件涉及的侵權光碟數量超過70,000張，亦有近20台光碟翻製機，每台配備2至7部光碟燒錄器。關員搜查侵權翻版光碟的貨倉及工場時，發現有多名持雙程證人士從事包裝及製造光碟工作。

At all material times, the applicant had a telebet account with the Hong Kong Jockey Club, a savings account and a current account with HSBC and a savings account and a current account with the DBS Bank.
申請人在有關時段擁有香港賽馬會電話投注戶口、豐銀行儲蓄及支票戶口和星展銀行儲蓄及支票戶口。

Between 1 January 2004 and 4 August 2005, a total of $4,919,970 was deposited into the applicant’s telebet account.  $3,834,610 of this amount was deposited by way of cash deposits at different betting centres.  The money deposited was soon withdrawn and paid into the applicant’s savings account with HSBC.  Another sum of money, amounting to $1,200,000 odd, was also paid into the applicant’s 4 bank accounts by way of cash deposits.
2004年1月1日至2005年8月4日期間共4,919,970元存入申請人的電話投注戶口，其中3,834,610元是在不同投注站以現金存入，而存入款額很快便被提取及存入申請人的豐銀行儲蓄戶口，其餘的120多萬元亦是以現金存入申請人的四個銀行戶口。

Ms. Lam Lai Kuen [transliteration,林麗娟], a chartered management accountant of the Customs Investigation Bureau gave evidence that at all material times, of the $4,900,000 odd which was deposited into the applicant’s telebet account with the Jockey Club, $2,200,000 was for betting and the dividend received was about $2,000,000.  However, $2,600,000 odd had not been used for betting.  About $2,600,000 went through the following process: after money was deposited into the betting account, it was withdrawn on the same day or the following day; and $670,000 of this amount was withdrawn within a very short time after the corresponding deposits were paid into the account.  Of the $4,900,000 deposit in the applicant’s telebet account, more than $3,800,000 was deposited at off-course betting centres of the Jockey Club.  Ms. Lam’s view was that of the money in the applicant’s betting account at least $2,100,000 cash was of unknown origin.
根據海關調查組特許管理會計師林麗娟女士的證供，在有關時段，申請人馬會電話投注戶口存入的490多萬元中，有220萬元用作投注，而收取派彩約200萬元，但有260多萬元，沒用來下注。約有260萬元在存入投注戶口後，當天或翌日便提取，而有67萬元更是在存款後非常短的時間內便立刻遭提取。申請人的電話投注戶口的490萬元存款中超過380萬元是經馬會場外投注戶站存入。林女士認為申請人投注戶口的款項最少有210萬元現金是來歷不明的。

According to the Inland Revenue Department records, at all material times in this case, the applicant and his wife did not file any return about their incomes at all.
根據稅務局記錄，在有關時段申請人及妻子完全沒有申報任何入息。

It is obvious that the applicant was an important figure in this criminal gang.  He used various places to make and store a large quantity of infringing copies of compact discs and, over a long period of time, sold pirated compact discs at the shops on the ground floor of Chung Kiu Commercial Building, resulting in immeasurable financial losses to the copyright owners of those compact discs. Through these crimes, the applicant reaped enormous financial benefits for himself.
申請人明顯是犯罪集團的主要人物，他利用不同地點製造及存藏大量侵權光碟，並長時間透過中僑商業大廈地下的多個店鋪出售侵權翻版光碟，對光碟版權持有人做成無可估計的經濟損失。透過其罪行，申請人亦獲得巨大經濟得益。

Sentences
判刑

The learned judge used 3 years as the starting point for the 1st, 3rd, 5th, 6th and 7th charges and 4 years as the starting point for the 2nd and 4th charges.  He made all these sentences concurrent and, because the applicant agreed to part of the facts, he reduced the term of imprisonment by 3 months to 3 years and 9 months.  At the same time, pursuant to section 27 of the Organized and Serious Crimes Ordinance, he enhanced the sentence by 50% to 5 years and 7½ months.  As for the 8th charge, the “money laundering” charge, he used 3 years as the starting point and similarly enhanced it by 50% to 4 years and 6 months; 6 months of which was to run consecutively to the sentences for the 7 charges about infringing copyright offences, making a total of 6 years and 1½ months imprisonment.
原審法官就一、三、五、六及七項控罪採納三年的基本量刑基準，而就二、四項控罪則採納四年基本量刑基準。原審法官將刑期全部同期執行，並因申請人同意部份案情而將刑期扣減3個月至3年9個月。原審法官同時根據《有組織及嚴重罪行條例》第27條將刑期加重50% 至5年7 ½ 月。就第八項洗黑錢罪，原審法官採納3年的基本量刑基準並亦將刑期加重50% 至4年6個月，而其中6個月和七項侵犯版權的刑期分期執行而導致最終的6年1 ½ 個月的判刑。

Mr. Chiu, counsel for the applicant, submitted that the sentences were too severe.  The percentage, namely 50%, by which the sentences were enhanced pursuant to the Organized and Serious Crimes Ordinance was too high.  Mr. Chiu argued that the 50% enhancing rate was only applicable to offences like triad-related offences, smuggling of vehicles, illegal trafficking in women to Hong Kong for prostitution and loan sharking, but not suitable for infringing copyright offences.
代表申請人的趙不淘大律師指判刑過重，原因是根據《有組織及嚴重罪行條例》加刑50% 的幅度過大。趙大律師指50% 的加刑幅度只適用於涉及黑社會罪行，偷運車輛，非法運送婦女來港賣淫及高利貸等罪行，而不適用於侵犯版權罪行。

Mr. Chiu stressed that there were similar cases in which the starting points ranged from 2-3 years and that the enhancing rate was only 30%.
趙大律師強調有同類案件的判刑基準只是2-3年之間而加刑幅度亦只是30%。

As far as sentences in similar cases are concerned, although the offences are the same offences, the mode and the scale of the operations are not the same. Therefore, the sentences passed in those cases are not guidelines, albeit not irrelevant.
即使是罪行相同，犯案手法及規模都不一樣，其他同類案件的判刑，雖然並非無關，但不具指引作用。

We must point out that this case is an extremely serious one in this kind of cases. The applicant and his many accomplices had been perpetrating these crimes of making and selling infringing copies of compact discs over a long period of time.
本庭須指出，本案是同類案件中極為嚴重的一宗。申請人和多名同謀，長時間從事製造及販賣侵權光碟的罪行。

There were more than 70,000 infringing copies of compact discs seized by the Customs Officers, but such quantity cannot sufficiently reflect the seriousness of the applicant’s crimes. This is because the Customs officers had kept the applicant and his accomplices under surveillance for more than one year and during this period of time or in a even longer period of time, the applicant’s gang made use of a number of shops in a busy shopping arcade to sell infringing copies of compact discs.  There is no way to work out the total amount but it must be a very substantial amount.  The scale of operation of the applicant’s gang can be gleaned from the vast sums of money deposited into his accounts.
關員搜獲侵權光碟的數量超過70,000張，但該些侵權光碟的數目不足以反映申請人罪行的嚴重性，原因是關員監視申請人和其同謀罪行的時間超過一年，在該段時間或更長時間，申請人的集團利用繁忙商場多個店鋪出售侵權光碟，總額無從計算，但必然是極為可觀。申請人集團的規模亦可從存入其戶口的巨額金錢可見一斑。

The making and selling of infringing copies of compact discs seriously and adversely affect the interests of the copyright owners, and is harmful to the reputation of Hong Kong as one of the major commercial centres in the world.  Since the mid 90’s in the last century, the Government of Hong Kong has publicized extensively against these crimes in order to combat and prevent people from committing these crimes.  However, the applicant and his accomplices paid no heed to the Government’s warnings and instead perpetrated these infringing copyright crimes over a long period of time and in an extensive scale.
製造及出售侵權光碟，嚴重影響版權擁有者的權益，亦影響香港作為世界主要商業中心之一的聲譽。香港政府上世紀九十年代中已廣泛宣傳，以打擊及阻嚇有關罪行，但申請人及其同謀無視政府的忠告，仍然長時間及大規模地從事侵犯版權的罪行。

In this case, in addition to the aggravating factors which are sometimes present in similar kind of cases, there are other factors which warrant more severe punishment.  The facts show that the applicant’s gang employed many two-way permit holders to assist them in committing these crimes.  By such conduct, the applicant’s gang demonstrated that they encouraged those people to contravene their conditions of stay, and there is also a possibility that they exploited those people by paying them very low wages.  The applicant must be given a heavy sentence in order to produce any deterrent effect.
本案除了具備同類案件的加重罪責因素外，更有額外的加刑原因。案情顯示申請人的集團僱用多名持雙程證人士協助他們從事罪行。該作為不但顯示申請人的集團鼓勵該些人士破壞他們的入境條件，更可能是以極低工資來剝削他們。申請人的罪行必需重判以收阻嚇作用。

This case is among the worst ones of its kind.  We consider that the 4 years starting point adopted by the trial judge for the 2nd and 4th charges is well founded and correct.  However, we think that it is questionable whether, after a high starting point was adopted, the term of imprisonment should further be substantially increased by 50% pursuant to the Organized and Serious Crimes Ordinance. As correctly pointed out by Mr. Chiu, to increase the term of imprisonment by 50% pursuant to the Organized and Serious Crimes Ordinance in a pirated compact disc case is unprecedented.  According to the authorities submitted to the court by the parties, in pirated compact disc cases, the percentage by which the sentences were enhanced pursuant to the Organized and Serious Crimes Ordinance did not exceed the range of 25% to 30%.
本案是同類案件最嚴重的一類。本庭認為就第二及四項控罪原審法官所採納的4年量刑基準是有根據，亦是正確的。但本庭認為採納較高量刑基準後，再根據《有組織及嚴重罪行條例》將刑期大幅度增加50%，有值得商榷之處。誠如趙大律師正確指出，在侵權翻版光碟案件，根據《有組織及嚴重罪行條例》將刑期增加50%是史無前例的。雙方向法庭呈交的案例顯示，在侵權翻版光碟案件，根據《有組織及嚴重罪行條例》加刑幅度不高於25% 至30%。

We quote the comment in paragraph 10 of the judgment of HKSAR v Ma Suet Chun and two others (CACC 1/2001)
本庭複述在香港特別行政區政府 訴 馬雪珍及另外二人（CACC 1/2001）判案書第10段作出的以下評論：

“Prior to this case there was no precedent to indicate that the court would enhance the sentence by 50% for similar cases. In such circumstances, if the sentence were to be suddenly enhanced by 50%, the defendants would feel a sense of unfairness.”
“在本案之前，並沒有任何先例指法庭會就同類案件加重刑期50 %，在這情形之下，將刑期驟增50%對被告人來說會有一種不公平感覺。”

We would like to emphasize that no matter how abhorring a particular crime is and how serious the facts of a particular case are, restraint should be exercised by the court when passing sentences and the sentencing guidelines should be followed. Otherwise, the severity of sentences in criminal cases would go on increasing.  This would lead to inconsistencies in sentencing and the lower courts would be at a loss as to what to do.
本庭亦想指出，不論個別罪行如何令人討厭，不論個別案件的案情多麼嚴重，法庭判刑時應有所抑制，亦應跟隨判刑指引，否則刑事案件的判刑會不斷遞升，不但做成判刑不一致，更令人無所適從。

The facts of this case are serious but in view of the fact that the starting points adopted are already high, we consider that to enhance the sentence by one third pursuant to the Organized and Serious Crimes Ordinance is sufficient. We accept the starting points used by the trial judge and his way of dealing with the terms. However, we reduce the rate of enhancing the sentences pursuant to the Organized and Serious Crimes Ordinance from 50% to one third. The sentence for the 1st, 3rd, 5th, 6th and 7th charges is varied to 48 months. The sentence for the 2nd and 4th charges is varied to 64 months. These sentences are to run concurrently and we reduce the term of imprisonment by 3 months to 61 months, because the applicant agreed to part of the facts, thereby saving time spent in the trial. As for the 8th charge, the “money laundering” charge, we reduce the term to 48 months, 5 months of which are to run consecutively to the sentences for the 7 infringing copyright charges. The total sentence to be served by the applicant is reduced from 6 years and 1 ½ months to 66 months, i.e. 5 ½ years.
雖然本案性質嚴重，但考慮到基本判刑基準已屬不輕，本庭認為根據《有組織及嚴重罪行條例》加刑的幅度三份一已足夠。本庭採納原審法官的基本量刑基準及其處理方法，但將根據《有組織及嚴重罪行條例》的加刑幅度由50%減至三份一。就第一、三、五、六及七項控罪的判刑改為48個月，就第二、四項控罪的判刑改為64個月，同期執行。本庭亦因申請人有同意部份案情，節省審訊時間而將刑期減3個月至61個月。就第八項“洗黑錢”罪，本庭亦將刑期減至48個月，其中5個月和七項侵犯版權罪行的刑期分期執行。申請人須服的總刑期由6年1 ½ 個月減至66個月，即5年半。

We grant the application for leave to appeal and treat it as the formal appeal. The applicant’s appeal against sentence is allowed and the terms of imprisonment are varied as stated above.
本庭批准申請人的上訴許可申請，並視申請為正式上訴。本庭判申請人減刑上訴得直，刑期改判如上。

The Applicant, acting in person in the application for leave to appeal against conviction.
申請人：有關定罪 -無律師代表，親自應訊。

Mr. Charles Chiu, instructed by Y. L. Yeung & Co. , assigned by the Legal Aid Department, for the Applicant in the application for leave to appeal against sentence.
有關刑罰 -由法律援助署委派楊英澧律師行轉聘大律師趙不淘代表。

Mr Felix Tam, Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司檢控官談立豐代表。