Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The three charges
三項控罪

On 19 August 2008, the two defendants pleaded guilty before District Judge Stanley Chan (hereinafter “Judge Chan”) to the following three charges:
兩名被告人於 2008 年 8 月 19 日在區域法院法官陳廣池席前承認以下三項控罪：

Charge 1
第一項控罪

Without the licence of the copyright owners of copyright works, possessing infringing copies of such works with a view to their being sold or let for hire by any person for the purpose of or in the course of any trade or business, contrary to sections 118(1)(f)(i) and 119(1) of the Copyright Ordinance (Cap. 528 of the Laws of Hong Kong).
未獲版權作品的版權擁有人的特許而管有版權作品的侵犯版權複製品，以期令某人可為任何貿易或業務的目的或在任何貿易或業務的過程中，出售或出租該等侵犯版權複製品，違反《版權條例》（香港法例第 528 章）第 118(1)(f)(i) 及 119(1) 條。

Charge 2
第二項控罪

Having in possession an article knowing that it was used to make infringing copies of copyright works for use for the purpose of or in the course of any trade or business, contrary to sections 118(8) and 119(2) of the Copyright Ordinance (Cap. 528 of the Laws of Hong Kong).
管有物品，並知道該等物品是用作製作版權作品的侵犯版權複製品以供為任何貿易或業務的目的或在任何貿易或業務的過程中使用，違反《版權條例》（香港法例第 528 章）第 118(8) 及 119(2) 條。

Charge 3
第三項控罪

Breaching a condition of stay, contrary to section 41 of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong) and regulation 2 of the Immigration Regulations (Cap. 115A of the Laws of Hong Kong).
違反逗留條件，違反《入境條例》（香港法例第 115 章）第 41 條及《入境規例》（香港法例第 115A 章）第 2 條。

The sentences
刑期

For Charge 1, Judge Chan adopted 27 months’ imprisonment as a starting point and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 18 months.  For Charge 2, Judge Chan adopted a starting point of 30 months’ imprisonment and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 20 months.  As regards the charge of breaching a condition of stay, Judge Chan adopted a starting point of 6 months’ imprisonment and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 4 months.  Judge Chan ordered that the sentences for Charges 1 and 2 were to run concurrently, and the sentence for the charge of breaching a condition of stay was to run consecutively to the sentences on Charges 1 and 2, making a total sentence of 24 months’ imprisonment for each defendant.
陳法官就第一項控罪以 27 個月監禁為量刑基準，在減去被告人認罪給予的三分一刑期扣減後，判處她們 18 個月監禁。陳法官就第二項控罪以 30 個月監禁為量刑基準，減去被告人認罪給予的三分一刑期扣減後，判處她們 20 個月監禁。至於違反逗留條件的控罪，陳法官以 6 個月監禁為量刑基準，減去被告人認罪給予的三分之一刑期扣減後，判處她們 4 個月監禁。陳法官命令第一及第二項刑期同期執行，而違反逗留條件的刑期則與第一及第二項控罪的刑期分期執行，總刑期為 24 個月監禁。

The facts
案情

The two defendants are both Mainland residents. They entered Hong Kong as visitors on 7 April 2008.  Their entry was subject to the condition that they were not allowed to work in Hong Kong.
兩名被告人是大陸居民，她們在 2008 年 4 月 7 日以遊客身分從內地進入香港。根據入境條件她們是不可在香港工作。

On 8 April 2008, customs officers stopped and searched the two defendants as they emerged from the ground floor premises (“the premises”) of a building in Tai Po Tin Village, Ta Kwu Ling, carrying a carton.  Customs officers found 777 pirated discs in the carton and later found from the premises 14,659 pirated discs, 22 sets of disc-replication machines, 12,010 blank digital discs and 4,940 blank discs.
香港海關人員於 2008 年 4 月 8 日在新界打鼓嶺大埔田村截查兩名被告人，當時她們手攜着一個紙箱從一幢位於該村的建築物地下的單位（‘該單位’）走出來。海關人員在該紙箱內發現 777 片翻版光碟及在該單位內搜出 14,659片翻版光碟、22台複製光碟的機器、12,010 片空白數碼光碟及 4,940 片空白光碟。

At least 15 of the aforesaid 22 sets of disc-replication machines were in good working order.  Most of the machines were equipped with 5 disc burners, and 2 of them were even equipped with 10 burners.  The pirated discs comprised VCDs, TV game discs, DVDs, computer software and computer game discs.
被搜出的 22 台複製機中最少有15 台是功能正常的。大部分的複製機都裝有5 個光碟燒錄器，其中兩台更裝有 10 個燒錄器。這批翻版光碟的內容包括影像、電視遊戲、數碼影像、電腦輭件及電腦遊戲。

The two defendants claimed that upon their arrival in Hong Kong, they were taken by a man, whose name was unknown, to the premises, where they burnt and packed pirated discs, earning a daily wage of HK$250.  Upon receiving instructions over the phone, they would deliver the pirated discs to another person.
兩名被告人聲稱在抵達香港後被一名不知名的男子帶到該單位內從事燒錄翻版光碟及包裝光碟的工作，每日薪酬為 HK$250。她們在接到電話指示後就將翻版光碟交予另外一名人士。

The 1st defendant
第一被告人

The 1st defendant was granted leave by a single judge of the Court of Appeal to appeal against sentence.  The two copyright offences that she has committed are “possessing infringing copies of copyright works for the purpose of trade or business” and “possessing an article for making infringing copies of copyright works for the purpose of trade or business”.
第一被告人獲上訴法庭單一法官給予許可就刑期提出上訴。第一被告人所犯的兩項版權條例的控罪分別是「管有侵犯版權複製品作為貿易或業務目的」及「管有物品用作製作侵犯版權複製品以供貿易及業務目的」。

Sentencing principles
量刑原則

In a number of decided cases (such as Secretary for Justice v. Choi Sai Lok & Anor [1994] 4 HKC 334, HKSAR v. Tsang Ho Kei & Tang Siu Kwong [CACC 227/2003], HKSAR v. Zhuang Xiao Luo [CACC 265/2004] and HKSAR v. Lee Yuk Chun [CACC 487/2004]), the Court of Appeal has clearly explained that offences contravening the Copyright Ordinance are serious in that they severely jeopardize Hong Kong’s status as a centre of fair trade.  In order to eradicate those offences, the court must impose deterrent sentences on those who commit the offences.  For the abovementioned cases, which involve the same offences as those in the present case, the Court of Appeal has taken the view that, save in exceptional circumstances, immediate custodial sentences have to be imposed.  A sentencing factor is the role played by the defendant in the case.  A distinction should be made, for example, between the mastermind of a pirated disc manufacturing operation and someone who is responsible for manufacturing, packing and delivering the discs.  The former will receive a longer sentence; as for the latter, the sentence is to be determined in light of the quantity of the infringing articles, the length of time over which the piracy took place and also other factors such as whether the defendant has pleaded guilty to the charges.
上訴法庭在多宗判例（如：Secretary for Justice v. Choi Sai Lok & Anor [1994] 4 HKC 334、香港特別行政區訴曾浩基(Tsang Ho Kei) 及鄧兆光 (Tang Siu Kwong) [CACC 227/2003]、HKSAR v. Zhuang Xiao Luo 莊曉洛 [CACC 265/2004]及HKSAR v. Lee Yuk Chun (李玉珍) [CACC 487/2004]）中清楚說明違反《版權條例》罪行的嚴重性，他們嚴重影響香港作為公平貿易中心的地位，故此法庭必須判處干犯這些罪行的被告人一個具阻嚇性的刑期以杜絕這類案件。上述案例涉及與本案相同的控罪，上訴法庭認為除非案件存在特殊情況，否則法庭是需要判處被告人即時入獄。法庭在量刑時會考慮到被告人在案中所扮演的角色，如一名翻版工場的主腦與一名負責製造、包裝或運送的人士在刑期上是應該有分別的。法庭就前者會判予一個較長的刑期，而就後者就會考慮涉及翻版活動的物品的數量、他們從事該活動的時間及其他因素，包括他們有沒有承認控罪。

In HKSAR v. Tsang Ho Kei & Tang Siu Kwong, the two defendants possessed more than 6,500 pirated discs as well as 5 computers for manufacturing the infringing copies.  The Court of Appeal adopted a starting point of 24 months’ imprisonment in respect of the possession of pirated discs, and took the view that the starting point for the possession of disc-replication devices should be 36 months’ imprisonment.
在曾浩基及鄧兆光 一案，兩名被告人涉及管有逾 6,500 片翻版光碟，並管有用來製作侵犯版權複製品的五台電腦。上訴法庭採用 24 個月監禁為管有翻版光碟的量刑基準。上訴法庭認為管有複製儀器的量刑基準應為 36 個月監禁。

In Lee Yuk Chun, the defendant possessed approximately 3,100 pirated discs and also 12 sets of disc-replication machines and 665 blank discs.  The Court of Appeal held that a starting point of 15 months should be adopted in respect of the possession of pirated discs and that 30 months was an appropriate starting point in respect of the possession of disc-replication devices.
在李玉珍 一案被告人管有約 3,100 片翻版光碟及管有12 台複製儀器及 665 片空白光碟。上訴法庭認為管有翻版光碟的控罪應以 15 個月監禁為量刑基準，而30 個月監禁是管有複製儀器的控罪的適當量刑基準。

None of the defendants in the two aforesaid cases was a mastermind of the piracy operation in question.
上述兩宗案件的被告人均不是翻版工場的主腦。

Circumstances of the present case
本案的情況

In the present case, Charge 1 involves more than 15,000 pirated discs, which far exceeds the quantities of pirated discs involved in Lee Yuk Chun and Tsang Ho Kei.  In light of this, Judge Chan has, quite properly in our view, enhanced the starting point from 24 months as laid down in Tsang Ho Kei to 27 months.
本案的第一項控罪所涉及的翻版光碟數量逾 15,000 片，它遠遠超過李玉珍及曾浩基 案所涉及的翻版光碟數量。陳法官適當地將曾浩基一案的 24 個月監禁的量刑基準調高至27 個月來反映本案所涉及的翻版光碟數量。

As regards Charge 2, the present case involves at least 15 sets of disc-replication machines and more than 16,000 blank discs which could be used for manufacturing pirated discs, which far exceed the number of disc-replication machines and blank discs involved in Lee Yuk Chun.  This notwithstanding, Judge Chan did not depart from the starting point of 30 months.  We see nothing improper with this decision.
至於第二項控罪，雖然本案所涉及的複製機最少有 15 台及可製作為翻版光碟的空白光碟逾 16,000 片是遠遠超過李玉珍 一案的複製機及空白光碟數目，但陳法官仍然以 30 個月監禁為量刑起點，本庭認為這是一項適當的裁決。

The fact that the 1st defendant had worked at the premises for only one day prior to her arrest is, in our view, a mitigating factor.  At the same time, however, it is obvious that the 1st defendant came to Hong Kong from the Mainland pursuant to an arrangement to take part in the piracy, and this, involving as it did cross-border criminal activities, is an aggravating factor.  The aforesaid two factors offset each other for sentencing purposes.
第一被告人在被捕前只在該工場工作了一天，本庭認為這是一項減刑因素，但同時第一被告人明顯是有計劃地被安排從內地進入香港以從事翻版工作，這涉及跨境的犯罪行為是一項加刑的因素，故此在量刑時這兩項因素互相抵銷。

The 1st defendant is a single parent.  She said her 13-year-old son had been admitted to the Beijing Dance Academy as a student and she came to Hong Kong to commit the offences in order to raise money to pay for her son’s studies.  She said at trial that her son had been unable to pursue his studies as a result of her incarceration, and that she had to take care of him and her mother who was aged 76 and seriously ill.  She also said that the Mainland government intended to recover possession of her accommodation for redevelopment purposes and that she would lose her home if she was unable to return to her home village to complete the formalities.  In our view, where, as in the present case, a deterrent sentence is called for, the defendant’s personal background cannot be regarded as a mitigating factor.
第一被告人是一名單親母親。她稱來港犯案的原因是她 13 歲兒子考進北京舞蹈學院，她需要籌錢繳交學費。她在本聆訊時表示由於她被囚禁致令她的兒子不能上學，她需要照顧他及她的 76 歲母親患了重病需要她的照顧。她亦說內地政府因進行重建工程而要收回她的住所，她需要回鄉辦理手續，否則會失去家園。本庭認為判決涉及一項具阻嚇性的刑期，因此個人背景不可被視作減刑的因素。

In our judgment, whether viewed individually or as a whole, the sentences imposed on the 1st defendant in respect the charges are appropriate.
本庭認為不論是第一被告人就各項控罪所獲判的個別刑期或是整體刑期都是適當的。

Conclusion
總結

We dismiss the 1st defendant’s appeal against her sentences, which are neither manifestly excessive nor wrong in principle.
刑期沒有明顯過高或者違反任何量刑原則。本庭駁回第一被告人的上訴。

The 2nd defendant
第二被告人

On 27 August 2008, the 2nd defendant applied for leave to appeal against sentence.  On 8 December 2008, however, she filed a notice of abandonment of application for leave to appeal (hereinafter “notice of abandonment”).  She also made the following statement in a standard form of statements of the Correctional Services Department:
第二被告人於 2008 年 8 月 27 日就刑期提出上訴許可申請，但於 2008 年 12 月 8 日提交放棄申請上訴許可通知書（‘「放棄通知書」’），她同時在一份懲教署的供詞表格內作出以下的書面陳述：

I, Gan Ai Rong, have received a letter from my husband.  He urges me not to go on with my appeal, the reasons being that I do not have legal aid and that I am ignorant of law and unable to defend myself.  After careful consideration, I have decided to abandon my appeal against sentence and my application for legal aid.  I hope this will be approved by the judge.
「本人甘愛榕，我已收到丈夫的來信，他叫我不要再上訴了，原因是我沒有法援，我自己又不懂法律知識不會自辯，於是我考慮清楚取消上訴減刑及法援，希望法官批准。」

Upon receiving the “notice of abandonment”, the court dismissed the 2nd defendant’s application for leave to appeal against sentence.
法庭在接獲該「放棄通知書」後撤銷了第二被告人針對刑期的上訴許可申請。

The 2nd defendant filed an affirmation on 31 December 2008, in the following terms:
第二被告人於 2008年 12 月 31 日再提交誓章，內容說：

本人甘愛榕經多番考慮，決定將本案 2008 年 DCCC 617 號，所有有關文件已及案發經過交給在這裏認識的一位熱心人仕的私人律師以便尋求進一步的法律意見。	After repeated consideration, I, Gan Ai Rong, have decided to give all the relevant documents of this case (DCCC 617/2008) and the course of events [sic] to the private lawyer of a warm-hearted person I got acquainted with here, in order to seek further legal advice.
「

Hence, I would like to renew my application to appeal against sentence, and I respectfully seek approval thereof.
故此，本人欲申請將此案再次提出上訴刑期。敬希批准！」

We will treat the 2nd defendant’s affirmation of 31 December 2008 as an application to “treat the notice of abandonment as a nullity”.
本庭視第二被告人 2008 年 12 月 31 日的誓章為一項「視放棄通知書為無效」的申請。

Legal principles
法律原則

In a number of decided cases, including HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1, HKSAR v. Lau Ka Keung [CACC 200/2005], HKSAR v. Law Shui Kei [2007] 3 HKLRD 114 and HKSAR v. Chan Leung Hang [CACC 16/2008], the Court of Appeal has made it clear that the abandonment of an application for leave to appeal is a serious legal action and that, in the absence of reasonable explanations, the court will not readily allow applications to “treat the notice of abandonment as a nullity” and reinstate the original application for leave to appeal.
上訴法庭在一系列的案例，如 HKSAR v. Lai Siu Cheung （黎兆詳 [譯音]）[2005] 1 HKLRD 1、香港特別行政區訴劉家強 (Lau Ka Keung) [CACC 200/2005]、香港特別行政區訴羅水基 [2007] 3 HKLRD 114 及香港特別行政區訴陳亮恆 [CACC 16/2008] 清楚說明放棄上訴許可申請是一項嚴肅的法律行動，除非有合理的解釋，否則法庭是不會輕易接納有關的「視放棄通知書為無效」申請及恢復原本的上訴許可申請。

The most important factor which constitutes a reasonable explanation is that the defendant was unaware that the filing of the “notice of abandonment” would render him unable to proceed with his appeal.  For example, when he signed the “notice of abandonment”, he mistakenly thought that he was signing a document of an entirely different nature.
甚麼是合理解釋的其中最重要的因素是當被告人提交「放棄通知書」時他根本不知道有關的行動會導致他不能再繼續上訴，例如當他簽署「放棄通知書」時，誤以為自己正在簽署另外一份性質完全不同的文件。

Circumstances of the present case
本案的情況

It is plain that when the 2nd defendant signed the “notice of abandonment”, she understood the nature of the document.  She indicated that she abandoned the appeal because she did not have legal aid, was ignorant of law and was unable to defend herself.  This shows that she did realize that she was withdrawing her application for leave to appeal, with the consequence that she could not lodge the application again.
明顯地，本案的第二被告人在簽署「放棄通知書」時是明白該份文件的性質，她表示放棄上訴的原因是由於她沒有法律援助、不懂法律知識及不會自辯，這顯示她是知道她所作出的行動是在撤銷她提出的上訴許可申請，而這個行動的後果是她不可以再提出申請。

As the 2nd defendant was aware of the consequence of what she did, she has failed to fulfil the requisite legal requirements which would cause the court to treat the notice of abandonment as a nullity and allow the 2nd defendant to proceed with her appeal.
由於第二被告人是知道有關行動的後果，故此她的情況未能符合有關法律的要求，致令法庭須視她的「放棄通知書」為無效，讓她繼續上訴。

The 2nd defendant produced at this hearing a document which describes the circumstances surrounding her arrest and subsequent making of the statements.  However, as she pleaded guilty to the charges and was legally represented at that time, the aforesaid information is of no assistance to her present application.
第二被告人在本聆訊時提交了一份文件陳述有關她在被逮捕當日及之後被錄取口供時的情況。由於她承認控罪及當時有律師代表，因此這些資料對她的申請沒有幫助。

Conclusion
總結

We dismiss the 2nd defendant’s application.
本庭駁回第二被告人的申請。

Mr David Leung, Senior Public Prosecutor, for the Respondent.
答辯人：由律政司高級檢控官梁卓然代表。

The Appellant/1st defendant in person, present.
上訴人/第一被告人：無律師代表，親自出席。

The Applicant/2nd defendant in person, present.
申請人/第二被告人：無律師代表，親自出席。