HKSAR v. NG PING KWAN

HCMA889/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.889 OF 2004

(ON APPEAL FROM FLCC 3090 OF 2003)

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REASONS  FOR  JUDGMENT

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1. These are my reasons for allowing the appeal by the appellant against his conviction.

2. The appellant was tried and convicted of possession for the purpose of, or in the course of, any trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owners contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance (“the Ordinance”).  He was fined a total of $10,000 for possessing five audio compact discs which the magistrate found to contain pirated music.

3. On 29 April 2003 officers of the Customs and Excise Department raided a shop in Luen Wo Hui, Fanling in the New Territories.  A total of 45 compact music discs suspected of containing pirated music were seized from the defendant’s shop where he worked as a shopping assistant.  At the end of the prosecution case, the number of infringing copies in the charge was amended to 28.  At the conclusion of the trial the magistrate found only five of the 28 discs were proved to have contained pirated music.

4. At the trial the applicant elected not to give evidence and not to call any witness.  Mr Davies, counsel for the appellant in this appeal also appeared at the trial in the court below.

5. In the course of the trial, an affirmation prepared under section 121 of the Ordinance was produced to the court as evidence to prove ownership and subsistence of copyright of the music contained in the discs seized.  The magistrate, however, found that he was not able to rely on the contents of the affidavit because :

“In the course of the present criminal prosecution, an affirmation has been submitted to prove ownership of copyright.  Nevertheless, the statutory requirement, namely section 121(10) has been overlooked and has not been fulfilled.  As such, I am not relying on any statements make in that affirmation.”  (paragraph 15 of the Statement of Findings)

6. Subsection 10 of section 121 provides that the affidavit has to be read out in court before it can be admitted into evidence unless the court directs otherwise.  It appears that the affidavit had not been read out in court by the deponent.

7. In order to remedy the defect in its case, the prosecution called two witnesses one Mr Yuen who gave evidence as PW5 and one Ms Chan who gave evidence as PW9 to give evidence of ownership and subsistence of copyright.  Mr Yuen was the sales manager of Sony Music Entertainment Hong Kong Limited and his evidence was that Sony Music is the copyright owner of the music contained in some of the items seized.  Ms Chan gave evidence that Capitol Artists is the copyright owner of the music contained in a number of discs seized.  Based on the evidence of these two witnesses, the magistrate found as a fact that copyright was proved and went on to find the case was proved against the appellant in respect of five of the discs seized.

8. Counsel for the appellant advanced two grounds of appeal.  The first being that the magistrate erred in ruling that the appellant had failed to satisfy the requirements for the statutory defence as laid down in section 118(3) of the Ordinance.  Under the section, it is a defence for a person charged under subsection (1) to prove, on a balance of probabilities, that he did not know and had no reason to believe that the copy in his possession was an infringing copy.  Suffice it to say that the appellant did not give evidence at the trial nor did he call any evidence for his defence, the magistrate must have been correct in finding that there was no evidence before him whereby the statutory defence could have been invoked.  There was nothing by way of evidence for the magistrate to even suggest that the appellant had relied on the statutory defence.  There is no merit in the first ground of appeal.

9. What causes concern however, is the magistrate’s approach and reliance on the evidence of PW5 and PW9 after he had rejected the section 121 affidavit.  Section 121 is a piece of legislation which provides a means whereby copyright ownership and its subsistence can be proved by affidavit evidence.  Prior to this enactment, proof of subsistence of copyright and ownership had been a major exercise in every prosecution under this Ordinance.  Not only is it time consuming, more often than not, it requires the prosecution to call multiple witnesses from overseas copyright owners.  It is a very costly and cumbersome exercise to say the least.  This section of the Ordinance has streamlined such procedures.  There are provisions in section 121 to provide for the information which must be contained in an affidavit prepared under the section.  It has been observed by the Court of Final Appeal in Tse Mui Chun v. HKSAR [2004] HKLRD 351 that for such an affidavit to be admissible as evidence, all the information required under section 121(1)(a) to (e) must be supplied.  A properly prepared affidavit should contain the date and place of the work that was made or first published; the name and the domicile of the author of the work; the name of the owner of the work; confirmation that the copyright subsists and a copy of the work must be exhibited with the affidavit.

10. In this case the learned magistrate held that the affidavit was not admissible.  Instead he relied on the evidence of PW5 and PW9 to prove ownership and subsistence of copyright in respect of five of the discs.  The transcript of PW5 and PW9 are incorporated in the appeal bundle of this case and I note there is a significant absence of detail in the evidence of the two witnesses regarding the statutory requirements of the affidavit.  

11. The section 121 affidavit is an alternative means of proving subsistence and ownership of copyright material.  If one is to resort to the pre-enactment procedures of proving copyright ownership, that is by calling oral evidence, one expects that the witnesses called should give evidence to meet the requirements which are stated in section 121(1)(a) to (e) of the Ordinance.  This was, however, not the case in respect of the two witnesses.  There was a singular lack of details regarding the information they supplied.  The effect of this absence of information must be that no reasonable tribunal could have found that the prosecution had discharged the burden of proofing that the contents of the five discs contained copyright music.

12. The ensuring conviction of the appellant must be that it was unsafe and unsatisfactory.  For the reasons given, the appeal against conviction is allowed and the fine, if already paid, should be returned to the appellant.