— 4 — came into being after downloaders decided to initiate the downloading process and so to obtain their infringing copies. The appellant submits that while he can properly be said to have made the infringing copies available, his conduct does not qualify as “distribution” of such copies. B.3 10. The decisions below At the trial before the magistrate 2 (at which Mr Pun did not appear), the focus was on the second of the abovementioned issues, although with a somewhat different emphasis. The main submission was that the appellant did not “distribute” the infringing copies because his conduct was only passive and that the downloaders obtained copies by their own actions. After examining the evidence in detail and listing the steps taken by the appellant, the magistrate held that “distribution”, a term given its ordinary meaning, had been established.3 The appellant was sentenced to three months’ imprisonment on each charge, the sentences to run concurrently. 11. On the appeal before Beeson J,4 both of the abovementioned issues were raised. Her Ladyship dismissed the appeal against conviction, upholding the magistrate’s approach to “distribution” and rejecting the argument that distribution of electronic copies requires delivery of the tangible objects in which they are incorporated. The custodial sentence imposed was also upheld. 12. This appeal, which is against conviction, comes before the Court by leave of the Appeal Committee granted on 7 February 2007. 2 Mr Colin Mackintosh (as H H Judge Mackintosh then was). 3 [2005] 4 HKLRD 142. 4 [2007] 1 HKLRD 95.