HKSAR v. LEE SIU HING

HCMA279/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.279 OF 1999

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REASONS FOR JUDGMENT

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1. These are my reasons for allowing the Appellant Lee Siu Hing's appeal against his conviction on one charge of Possession for the Purpose of Trade or Business of Infringing Copies of Cinematograph Films in which Copyright Subsisted, contrary to s.5(1) of the Copyright Ordinance. He was sentenced to four months' imprisonment.

2. On 4 March 1997, the police raided the shop premises at Shop 51B on the Ground Floor of 278 King's Road ("the Shop"). Some 1,332 video compact discs were seized from the premises and subsequent investigation revealed that 218 of them were pirated copies of cinematographic works. A man, not the Appellant, was arrested at the Shop premises at the time of the raid. The case was handed over to the Customs and Excise Department for further investigation.

3. On 5 August 1997, some five months after the raid, the Appellant presented himself to the Customs and Excise Office, bringing with him a business registration certificate of one Choi Lung Laser Disc Company having its business address at the raided premises. The date of the certificate was 27 January 1997. The Appellant was interviewed by a Customs and Excise Officer who appeared at the trial as a prosecution witness. During the interview, the Appellant told the officer that he was not the actual proprietor of the premises. According to him, he was requested by someone else to sign and apply for the Business Registration, and for which he was paid $500 a day. He was never involved in the day-to-day operation of the business.

4. The record of interview was produced as evidence in the Court below. The admissibility of the document was not challenged.

5. In his Statement of Findings, the learned Magistrate observed :

" I do not accept that the appellant informed the Customs and Excise Officers of the reason for the application for the Business Registration Certificate. He knew why he was being interviewed and exercised his legal right to silence although at the time he could have done so. ... I did not believe the appellant although no burden of proof rests upon him."

Later on, the learned Magistrate stated :

".... There is no evidence to show to the satisfaction of the court that he did not know and there was no reason to believe that there were infringing copies in the shop."

He then went on to find the charge proved beyond reasonable doubt and convicted the Appellant.

6. One of the ingredients of the present offence which the prosecution had to prove was that the Appellant was in possession of the offending works. At the time of the raid, the Appellant was not present in the Shop. In convicting the Appellant, the learned Magistrate must have found that the Appellant was in possession of those articles. It appeared that the learned Magistrate relied on the fact that the Appellant had signed on the business registration certificate and inferring therefrom that the Appellant was in possession of the pirated discs. The learned Magistrate stated that he did not believe the Appellant's explanation as to how he became the proprietor of the Shop. It was of course open to the learned Magistrate to reject the Appellant's explanation. But it appeared that the Magistrate had fallen into the error of making a quantum leap, without first considering if there was evidence before him to come to support his inference.

7. Mr Wong for the Appellant had rightly contended that there was no evidence based upon which the learned Magistrate could have drawn a logical and irresistible conclusion that the Appellant was in possession of the infringing articles. Had the Appellant been present at the Shop during the raid, I could see the force and rationale behind the Magistrate's inference. The fact remains that the Appellant was not at the Shop and another person was arrested during the raid. The Business Registration Form could not have been evidence to show knowledge, possession or control by the Appellant of the subject matter of the charge.

8. In my view, the inference drawn by the learned Magistrate was flawed and the conviction is rendered unsafe and unsatisfactory.

9. For the reasons given, the Appellant's conviction is quashed and the sentence is set aside.