HKSAR v. MAK WAI HON

CACC 106/1999, 38/2000 & 67/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 106 OF 1999, 67 & 38 OF 2000

(ON APPEAL FROM DCCC 1230 & 1231 OF 1998 AND 706 OF 1999)

CACC 38/2000

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. These three applications for leave to appeal against conviction out of time have been consolidated as the point which arises in CACC 38/2000 and CACC 67/2000 is the same. Furthermore, the Applicant in CACC 67/2000 is also the Applicant in CACC 106/1999.

2. Tang Siu-kwong (A1) was convicted, following a trial in the District Court on 20 October 1999 on a charge of possessing, for the purpose of trade or business, infringing copies of copyright works with a view to committing an act which infringed the copyright without the licence of the copyright owner, contrary to sections 118(1)(d) and 119(1) of the Copyright Ordinance, Cap. 528. This offence related to just over 20,000 video compact discs and 5,508 music compact discs. On the day of his conviction, he was sentenced to twelve months' imprisonment and, we are informed today, is due for release on 15 June 2000.

3. Mak Wai-hong (A2) pleaded guilty in CACC 67/2000 on 28 January 1999 in the District Court to two charges, brought under the same sections of the Copyright Ordinance which applied to A1's offence, of copyright offences relating to over 22,000 video compact discs and 1,300 music compact discs. He received concurrent sentences in respect of these offences of eighteen months and two years' imprisonment which were suspended for two years. This sentence was subsequently taken to the Court of Appeal for review by the Secretary for Justice and the sentences were ultimately substituted by immediate terms amounting to nine months' imprisonment, to run concurrently with the other sentences A2 was by then serving.

4. A few days after A2 had been given the suspended sentence in CACC 67/2000 and before the review of sentence, he appeared on 8 February 1999 before a different District Court judge when he was sentenced to a total of sixteen months' immediate imprisonment for three further copyright offences, committed on 20 June 1997, which were charged under the pre-existing legislation relating to copyright, namely section 5(1) of the Copyright Ordinance, Cap. 39. He was still serving the sentence for these offences when his application for review was heard in the Court of Appeal in relation to his other copyright offences. It should be said that he pleaded guilty to these charges and is due to be released from his sentence tomorrow. This particular case related to over 33,000 video compact discs and 211 CD-ROM discs which were infringing copies of copyright works.

5. Turning to the applications in CACC 38/2000 and CACC 67/2000, these come before this court as the result of the recent discovery by the Department of Justice that the District Court cases to which they relate should not, in the Respondent's view, have been transferred from the magistrates' court to the District Court.

6. In both these cases, as we have said already, the charges were brought under the provisions of section 118(1)(d) and 119(1) of the Copyright Ordinance, Cap. 528. Under section 118(1), a person commits an offence if, without the licence of the copyright owner, he makes, possesses or deals in various ways with an infringing copy of a copyright work for commercial purposes. Additionally, section 118 provides for two other offences. Under section 118(4), a person commits an offence if he makes, possesses or variously deals with an article specifically designed or adapted for making copies of a copyright work with the intention that they be made for commercial purposes. Section 118(8) makes it an offence if a person has in his possession an article "knowing or having reason to believe that it is used or is intended to be used to make infringing copies of any copyright work for sale or hire or for use for the purpose of trade or business".

7. The penalties for offences under section 118(1) are provided by section 119(1) and, for offences under sections 118(4) and (8), these are covered by section 119(2). Section 119 reads as follows:

"(1) A person who commits an offence under s.118(1) is liable on conviction to a fine at level 5 in respect of each infringing copy and to imprisonment for 4 years.

(2) A person who commits an offence under s.118(4) or (8) is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 8 years." (Emphasis added.)

8. The addition of the words "on indictment" in section 119(2) makes an important, and apparently deliberate, distinction between this and the preceding subsection where those words do not appear. The significance of the distinction is because section 14A(1) of the Criminal Procedure Ordinance, Cap. 221, provides:

"Where any provision in any Ordinance creates, or results in the creation of, an offence, the offence shall be triable summarily only, unless-

(a) the offence is declared to be treason; or

(b) the words 'upon indictment' or 'on indictment' appear; or

(c) (Repealed 50 of 1991 s.4(1)); and

(d) the offence is transferred to the District Court in accordance with Part IV of the Magistrates Ordinance (Cap. 227)."

9. Mr Saw, SC for the Respondent, has very responsibly on behalf of the Secretary for Justice, drawn to our attention that the words "upon indictment" or "on indictment" do not appear in section 119(1) and, as that is so, he submitted that offences prosecuted under section 118(1) can only be triable summarily subject to the provisions of section 88(1) of the Magistrates Ordinance, Cap. 227. In short this provides for the transfer of certain indictable offences from the magistrates' court to the District Court, although a magistrate may transfer a summary offence to the District Court upon application made by the Secretary for Justice if the defendant also faces an indictable offence which is to be transferred to that court. There is no jurisdiction for a magistrate to transfer a summary offence on its own to the District Court in circumstances where the defendant is not also accused of an indictable offence which the prosecution is seeking to have transferred.

10. The jurisdiction of the District Court in criminal proceedings is provided for by sections 74 and 75 of the District Court Ordinance, Cap. 336. In summary, these sections establish that the District Court has jurisdiction to try charges or complaints transferred by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance, that is to say sections 88-90, or proceedings on indictment transferred to the court from the Court of First Instance under section 65F of the Criminal Procedure Ordinance.

11. It is readily apparent, as Mr Saw has conceded, having brought this court's attention to the problems which have been encountered in these cases, as well as having initiated these applications, that the transfer of these summary offences on their own, unaccompanied by an indictable offence, was null and void. The magistrate had no jurisdiction to make an order transferring them to the District Court. Indeed, the jurisdiction over these cases remains vested now with the magistrate. We should perhaps add that where a magistrate has acted in excess of his jurisdiction, he is nevertheless competent to exercise his jurisdiction properly as Mayo J (as he then was) said, relying on what was stated in R v West (1964) 46 Crim App R 296 at 312, in Attorney General v Nunns (Permanent Magistrate) and Another [1987] 2 HKC 294 at 296D.

12. Turning for a moment to the third of the applications, CACC 106/1999, the precursor to Cap. 528 was the Copyright Ordinance Cap. 39. Section 5(1) of that Ordinance was replaced by section 118(1) of Cap. 528. Section 5(1) of Cap. 39, as amended with effect from May 1995, made it an offence to possess infringing copies of copyright works for commercial purposes for which a person was liable on conviction on indictment to

"(a) in the case of a first conviction for that offence, to a fine at level 4 for each infringing copy and to imprisonment for two years; and

(b) in the case of a second or subsequent conviction for that offence, to a fine at level 5 for each infringing copy and to imprisonment for four years."

13. With the introduction of the new legislation very soon after the offences in CACC 106/1999 were committed, the distinction between first time and subsequent offenders was abolished and all offenders were made liable under section 119(1) of the new Ordinance for offences brought under section 118(1) to the more serious penalty provisions of fines at level 5 for each infringing copy and to imprisonment for up to four years.

14. A2's convictions in February 1999, resulting from offences committed under the earlier legislation contained in Cap. 39 are not in any way impugned. They were properly transferred to the District Court as these were triable offences on indictment. Mr Tolliday-Wright has frankly conceded during the course of today's proceedings that this correctly states the position and he has indicated that he no longer wishes to pursue his application in CACC 106/1999.

15. So far as A1 and A2 are concerned in the applications in CACC 38/2000 and 67/2000 respectively, the position is quite different as these were, we are satisfied, cases which charged summary offences which could not on their own be committed to the District Court.

16. For the reasons we have given, and expressing our indebtedness to all of those who today represent the Respondent for having drawn attention to the point which has been raised in these two particular applications, we agree that the transfer of those two cases from the magistrates' court to the District Court was in error. It follows that the proceedings in the District Court in both of those cases amounted to a nullity. This applies even to CACC 67/2000 in spite of the fact that A2 pleaded guilty to the charges when he appeared in the District Court because, put quite simply, the charges should never have been transferred there in the first place.

17. Accordingly, so far as the applications made out of time in CACC 38/2000 and CACC 67/2000 are concerned, we shall grant leave and, treating the hearing as the appeal, we quash the respective convictions recorded in those two cases.

18. In relation to CACC 106/1999, as this application was wholly misconceived and has not been pursued, we decline to give leave out of time and the application is dismissed.