Sentencing Guidelines for Copyright Pirates in the United States and the Hong Kong Special Administrative Region: A Comparative Perspective

As more and more nations prosecute copyright piracy cases, it is far from clear whether these nations, in seeking to protect legitimate copyright interests, will also recognize the need to achieve three goals in the sentencing of such cases. The first is honesty in sentencing: that is, avoiding situations in which the nominal sentence that a court initially imposes at sentencing may later be substantially reduced through the parole process. The second is reasonable uniformity in sentencing, so that courts do not have wide disparities in the sentences they impose on similar offenders who commit similar criminal offenses. The third is proportionality in sentencing, so that courts can impose suitably different sentences on offenders whose criminal conduct differs in severity. This article compares the sentencing guidelines for copyright piracy in the United States and the Hong Kong Special Administrative Region (“HKSAR”). In this case, it would be inappropriate to examine only the superficial similarities between the two jurisdictions’ sentencing practices for copyright offenders. As this Article will show, there are substantial differences not only in the types of guidelines that both jurisdictions have devised, but also in the means by which those guidelines have been developed. This Article will therefore begin by summarizing the features of the U.S. Sentencing Guidelines that are most pertinent in sentencing criminal copyright offenders. It will then examine the emergence of judicially devised sentencing guidelines in the HKSAR. Finally, it will identify the more significant points of similarity and contrast between the two types of guidelines, and evaluate the extent to which both types of guidelines achieve the fundamental goals of honesty, uniformity, and proportionality in sentencing. SENTENCING GUIDELINES FOR COPYRIGHT PIRATES IN THE UNITED STATES AND THE HONG KONG SPECIAL ADMINISTRATIVE REGION: A COMPARATIVE PERSPECTIVE