HKSAR v. SIU MO NOR, ISIS

CACC409/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.409 OF 2004

(ON APPEAL FROM DCCC1028 OF 2003)

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J U D G M E N T

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Burrell J (giving the judgment of the Court) :

1. The applicant was the 2^nd defendant in a trial in the District Court.  The 1^st defendant was her boyfriend.

2. They both faced three charges alleging offences against the Copyright Ordinance, Cap.528.  Charge 1 was an offence of making infringing copies of copyright works for sale (s.118(1)(a)); charge 2 was an offence of possessing such items for the purpose of or in the course of trade or business (s.118(1)(d)) and charge 3 was an offence alleging that they possessed equipment knowing or believing it was used or intended to be used for making infringing copies of copyright works for sale or hire (s.118(8)).

3. The learned deputy judge acquitted both defendants on charges 1 and 3 and convicted both on charge 2.  The 1^st defendant originally appealed his conviction but has since abandoned his appeal.  We are concerned therefore with the appeal of the 2^nd defendant, the girlfriend, against her conviction for possession of the infringing copies.  The amended charge listed 358 discs of different types which had all been in a cardboard box containing a total of approximately 500 discs which had been one of many exhibits seized from a flat in Shumshuipo of which the 1^st defendant was the tenant.

A summary of the facts as found by the judge

4. On 31 August 2002, a group of police officers were lying in wait near the entrance to the flat in question.  The 1^st and 2^nd defendants arrived at the flat door and the applicant was in the process of using her keys to open the door when the police appeared and arrested both defendants.  The police had been in possession of a search warrant in connection with suspected offences related to the possession of obscene articles.

5. Whilst they all waited for the police inspector to arrive and whilst still outside the flat, the 2^nd defendant informed the police that the 1^st defendant was her boyfriend and that he was the tenant of the flat and that she resided there with him.

6. Once inside the flat, a number of articles were observed and seized and/or photographed.  They included :

— the keys used by the applicant to enter the flat;

— the tenancy agreement and rental receipts which the applicant got from the bedroom and gave to the police;

— several pairs of ladies shoes;

— a cardboard box containing the infringing optical discs which had been placed on the floor in the main room of the flat;

— a computer host;

— a catalogue of infringing discs;

— packaging paraphernalia such as a label printing machine, inlay cards, envelopes, chops, a guillotine etc.

7. The applicant exercised her right to silence once inside the flat and elected not to give evidence at her trial.  The 1^st defendant did give evidence.

The appeal

8. Mr James McGowan on the applicant’s behalf raises six grounds of appeal.  Grounds 1 and 2 criticize the learned judge’s findings of facts.  The basis of the criticism is that the judge should not, on the evidence before him, have relied on the evidence of the police witnesses on a number of matters.

9. The findings of fact which are relevant to the case against the 2^nd defendant and which are criticized are :

(a)	that the 2nd defendant was in possession of any keys at all;
(b)	that the 2nd defendant opened the flat door with her keys;
(c)	that the 2nd defendant orally informed the police that she lived in the flat with her boyfriend, the 1st defendant;
(d)	that the 2nd defendant located a tenancy agreement in the name of the 1st defendant and rental receipts in the bedroom of the flat and handed them to the police.

10. It is not necessary for us to analyze the evidence concerning these issues or the competing submissions in relation to them from Mr McGowan and Mr Robert Andrews on behalf of the respondent, since we have come to the conclusion that the appeal should be allowed on Ground 3.  Ground 3 stands alone.  We have considered Ground 3 on the basis that Grounds 1 and 2 are rejected.  We reject the submissions made on the applicant’s behalf that the findings of fact made by the learned judge, which are criticized in Grounds 1 and 2, should not have been made.  

11. We proceed on the basis that the findings of fact were properly made and cannot be criticized.  We commence our consideration of Ground 3 therefore, on the basis that the applicant did possess and use her keys to gain entry to the flat, that she was living there at the material time as the 1^st defendant’s girlfriend and that she knew where the tenancy agreement, in the 1^st defendant’s name, was kept.  

12. Ground 3 states :

“Even if any or all of these findings were not in error, the learned deputy judge erred in drawing the inference that the Applicant herself was in possession of the infringing discs as alleged in the Second Charge, particularly as the said discs were found only in one cardboard box.”

13. At the conclusion of a lengthy and detailed ‘reasons for verdict’, the learned deputy judge said :

“I am satisfied so I am sure on all the evidence that the only inference to draw is that both the 1^st and 2^nd defendants were living in the premises and were in joint possession of the infringing discs and articles seized by the police, knowing what they were.”

Thus, the learned judge has drawn two inferences from the primary facts namely that the 2^nd defendant was living in the 1^st defendant’s flat and that she was in joint possession of the illegal discs found therein.

14. Plainly, the learned judge was right to draw the first inference.  What has concerned us is whether he was right to draw the second inference as well, on the same facts.

15. The facts listed in paragraph 9 of this judgment were not the only facts which fell for consideration by the learned judge.  Some further evidential points should be highlighted before considering the correctness of the second inference.  Firstly, the 2^nd defendant was living in the flat as a girlfriend.  She had no legal or beneficial interest in the premises other than as a “live-in guest”.  Secondly, there was no evidence one way or the other as to how long she had been living there.  Thirdly, there was no evidence one way or the other as to how long the cardboard box containing the discs had been in the flat.  Fourthly it was obvious, and the judge so found, that the premises were being used both as a residence and also as a small packaging factory of illegal optical discs.

16. We now consider the second inference in the light of the above matters and in the light of the proper findings of fact made by the judge.  The inference drawn is that possession of the discs by the 2^nd defendant has been proved.  In other words, that knowledge, custody and control of the discs by the 2^nd defendant has been inferred as a result of her living in her boyfriend’s flat in which the unlawful packaging of illegal discs was carried on.

17. Mr Andrews conceded that there were no particular facts which pointed exclusively to the 2^nd defendant’s custody and control of the discs.  Rather, he put his submission on the basis that because of the totality of the circumstances, the learned judge was right to conclude that not only did she live there, not only did she know of the discs, not only did she know the discs were unlawful but also that she, as well as the 1^st defendant, had custody and control of them.

18. With respect, we do not think that the evidence, taken as a whole, can prove that final and crucial ingredient of the offence.  The learned judge did not separate the inference of living in the premises from the inference of custody and control of the discs.  He deals with them both in one sentence against both defendants.  Had he considered the defendants separately and had he considered the possible inferences separately he would have asked himself the following question — are there any proven facts from which the only reasonable inference is that the 2^nd defendant had custody and control of the discs?  The proper answer to this question is No.

19. The scenario of a person being found in premises or in a vehicle in which illegal things (such as drugs, firearms, stolen property and so on) are found is very common.  R. v. Bland [1998] Crim.LR 41 was a drugs case which was similar, but not identical, to the present case.  In that case, the appellant was living in one room of a house with her boyfriend who was a drug dealer.  Drugs were found in the room.  The appellant’s conviction for possession of drugs with intent to supply was quashed on appeal.  The Criminal Law Report commentary stated that :

“… there was no evidence of assistance, active or passive; the fact that the appellant and Ratcliff lived together in the same room was not sufficient evidence from which the jury could draw such an inference.  There was sufficient evidence from which the jury could have inferred knowledge on the appellant’s part that Ratcliff was drug-dealing, but no more.  Assistance, though passive, required more than mere knowledge; for example, it required evidence of encouragement at least, or of some element of control, which was entirely lacking in the case.  The case should have been withdrawn from the jury.”

20. In short, the element of custody and/or control cannot be inferred from a person’s cohabitation with a guilty party even when that person also has knowledge of that guilty party’s criminal activities, without more.  In this case, as in Bland, evidence from which the applicant’s custody and control of the discs could be inferred was “entirely lacking”.

D2’s election not to give evidence

21. Although this aspect of the case was not argued before us, it was referred to by Mr Andrews in his written submission.  For the sake of completeness, we will therefore deal with it, briefly.

22. The learned judge, in his reasons for verdict, referred to Lord Hoffman’s judgment in Li Defan v. HKSAR (2002) 5 HKCFAR 320 in which it was stated that the absence of any explanation from the defendant may strengthen the inferences to be drawn from the prosecution evidence.

23. Two observations should be made.  Firstly, this direction enables a judge sitting alone or a jury to “strengthen the inference to be drawn …”.  In other words, an inference which has properly been drawn may become stronger as a result.  But, the inference has to be properly drawn first.  What it does not permit is the conversion of an inference which should not be drawn into one that may be drawn.  It should not be used as a catalyst to convert suspicious facts into proven facts by inference.  Secondly, even the question of whether the inference is strengthened or not should be considered with caution.  In Lord Hoffman’s judgment in Li Defan, he quoted a lengthy passage from Weissensteiner v. The Queen (1993) 178 CLR 217, part of which is as follows :

“Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case.  The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence.  Ordinarily it is appropriate for the trial judge to warn the jury accordingly.

Not every case calls for explanation or contradiction in the form of evidence from the accused.  There may be no facts peculiarly within the accused’s knowledge.  Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution.  Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.”

24. In the present case, it could be argued that the applicant had two good reasons not to give evidence.  Firstly, that the evidence of possession against her was deficient and secondly, if she went into the witness box expressly to vindicate herself she was likely to implicate her boyfriend at the same time.  If a decision not to give evidence is either reasonable or understandable, a judge should be slow to utilize it against the defendant in line with Li Defan.

25. For all the above reasons, we grant leave to appeal and treating the application as the appeal, we allow the appeal, quash the conviction and set aside the sentence.