HKSAR v. LEE WING HUNG

HCMA305/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 305 OF 2003

(ON APPEAL FROM FLCC 2201/2002)

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J U D G M E N T

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Introduction

1. The appellant was convicted after trial at Fanling Magistrates' Court on 17 February 2003 of the following offence :

"Possessing 498 music compact discs and 634 video compact discs being infringing copies of copyright works, for the purpose of, or in the course of, any trade or business with a view to committing any act infringing the copyright without the license of the copyright owner, contrary to Section 118 (1)(d) and 119(1) of the Copyright Ordinance, Cap. 528."

2. On 3 March 2003 he was sentenced to a term of 10 months' imprisonment. He originally appealed against both conviction and sentence but he now wishes to pursue only his appeal against conviction.

3. On 23 May 2003 the appeal was listed for hearing before me. Mr Tang (who had not appeared at trial) appeared on behalf of the appellant and he applied for an adjournment pending a decision by the Court of Final Appeal in the case of Tse Mui Chun v. HKSAR, FACC No. 4 of 2003 which awaited decision I was told might have some bearing upon this present appeal.

4. The respondent had no objection to the application for the adjournment, and because of the inevitable lengthy delay I granted bail to the appellant pending the hearing of his appeal. In the event the reasons for the judgment of the Court of Final Appeal were not handed down until 19 December 2003.

5. On 10 February 2004 the appeal came back before me and I dismissed it. My reasons follow.

The trial

6. Evidence was given at trial that about 10:45 p.m. on 22 January 2002, two police officers, PC1085 and PC2558 (PW1 and PW2), searched a light goods vehicle outside King Nga Court in Tai Po. The appellant was the registered owner and driver of the vehicle at the material time. Upon searching, and among other things, three nylon bags containing a batch of over 1,000 suspected infringing optical discs and a compact disc replicating tower and seven compact disc rewriters; and about 700 blank optical discs were found in the vehicle's goods compartment. PW1 then arrested the appellant and cautioned him. PW1 gave evidence that, under caution, the appellant said he was transporting the optical discs for someone.

7. Later, on 25 February 2002, Customs Officer 97116 (PW7) took over the case on behalf of the Customs & Excise Department.

8. PC51758 (PW3) was the police exhibits officer. He seized, inter alia, the suspected infringing optical discs (the exhibits) in the presence of PW1 and the appellant. PW3 gave evidence that the description of the exhibits had been entered into a computer used for keeping the records of the exhibits.

9. Three police officers and two customs officers (PWs 4, 5, 6, 7 and 8) all gave evidence that they had checked the exhibits and that the property list and that the tamper-free bags in which the exhibits were placed were in order. They also testified that the exhibits had not been tampered with at any time. PW7 was the Customs & Excise officer who received the exhibits. He testified that he had carefully checked all the exhibits and then signed on a computer produced record. An exhibit marked P12 was shown to him and he confirmed that the signature appearing there was his and that P12 appeared to him to be the record he signed. He accepted P12 was a photocopy of the record and not the original. He gave evidence that he had ticked against the name of each item those items which he received. In cross-examination it was put to him that the ticks were original and in ink and thus had been added after the document had been photocopied. PW7 failed to understand this suggestion and this may have in part been due to misinterpretation from English into Cantonese and he insisted that the record was accurate -

whatever he may have meant by that.

10. Between 27 May 2002 and 24 July 2002, PW8 arranged for the optical discs to be examined by the respective copyright owners or agents to see if they were genuine licensed copies.

11. Seven copyright owners or their representatives stated in affirmations (made pursuant to section 121 of the Copyright Ordinance) that the optical discs were infringing copies. Two of those witnesses, PW13 and PW15 gave evidence at trial. The magistrate admitted the affirmations into evidence and accepted the evidence of PW13 and PW15 and ruled that the optical discs were infringing copies of copyrighted work.

12. The magistrate also found that the infringing compact discs and video compact discs seized were not for personal or domestic use.

13. Among the seized compact discs were multi-copies of different films or songs. Some were packed with inlay cards and transparent bags while some were not individually packed. The discs (including 700 blank optical discs) examined by the copyright owners and/or their representatives are in CDR format. As a compact disc replicator tower, inlay cards, transparent and plastic bags were all found on the appellant's vehicle the magistrate found that the items particularised in the charge were made in Hong Kong and that the optical discs were made for sale. The magistrate also found as a fact that the appellant was an incredible witness and that he had failed to establish the statutory defence. The magistrate admitted into evidence what the police said the appellant had told them under caution and she found as a fact that the appellant was in possession of those items set out in the particulars to the charge and that he knew that he was in possession of infringing copies of copyrighted work.

The grounds of appeal

14. On 10 February 2004, Mr Tang, counsel for the appellant, indicated to me that the appellant no longer wished to pursue his appeal against sentence and I accordingly treated that appeal as having been abandoned and I dismissed it.

15. The grounds of appeal against conviction upon which the appellant then relied were these :

"Ground 1

The learned magistrate erred by entering into the arena, thus depriving the appellant of a fair trial by way of :

(a)	at times during the course of the trial taking the lead in questioning witnesses;
and
(b)	on one occasion during examination-in-chief of a witness, the learned magistrate was seen to be whispering to the interpreter.

Ground 2

The learned magistrate :

(a)	erred in admitting an exhibit, namely exhibit P12, into evidence;
and
(b)	erred by wrongly concluding that the chain of evidence had been established."

16. In support of those grounds of appeal Mr Tang submitted to me no fewer than 33 pages of written submissions. I make no complaint about that because a great many of those pages were, in reality, extracts from the transcript and indeed I found it extremely helpful to have the relevant parts of that transcript alongside the submissions in the same document.

17. I do not propose to say much about the 1st ground of appeal because, in my judgment, it was wholly misconceived. The suggestion in that ground is that the magistrate 'entered into the arena'. She did nothing of the sort. What she did do was to ask questions simply in order to clarify answers or evidence which she did not understand. When counsel at trial (and I repeat that it was not Mr Tang who appeared before me) repeatedly, and in a somewhat unseemly fashion, made complaint about those questions and about a "sotto voce" exchange between the magistrate and the court interpreter he was met with courtesy and explanations. The magistrate, quite rightly in my view, declined counsel's invitation to recluse herself.

18. As to the 2nd ground of appeal, again, with respect, that too was misconceived. It was based upon a misunderstanding of the state of the evidence. The exhibit in question in effect added nothing to the customs officer's evidence which was that he had received from the police all of the exhibits which had been seized on 22 February 2002 and all of which were listed on the exhibit. Whether he, or somebody else, had ticked off various items on that exhibit, or if that had been done on the original or on the photocopy or both was immaterial provided that the magistrate accepted the main thrust of his evidence after due consideration.

19. As I have said that main thrust was that he had received from the police the relevant exhibits and he had retained control of them until trial. And thus the chain of evidence was complete.

20. As it were by way of closing remarks and not by way of a ground of appeal, Mr Tang referred me to the judgment in Tse Mui Chun's case (see paragraph 3 above) and invited me to find that two of the affirmations (referred to in paragraph 11 above) were in fact defective by reason of reference to the country and not to the state within the country.

21. If I understood him correctly, Mr Shiu for the respondent did not seek to gainsay that contention.

22. All that I will say about it is this. Those two affirmations refer only to 274 discs and that if I deduct those discs from the 1,132 particularised in the charge, it makes no difference whatsoever (except numerically) to the fact of the conviction.

23. It was for all of these reasons that I dismissed this appeal.