HKSAR v. CHING KHEI CHEONG, CHRISTOPHER AND ANOTHER

HCMA1070/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1070 OF 2001

(ON APPEAL FROM ESCC 350 OF 2001)

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J U D G M E N T

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1. The appellants were convicted on 17 August 2001 of possession for the purpose of trade or business of infringing copies of copyright works, with a view to committing an act infringing the copyright without the licence of the copyright owner. On 31 August 2001, the 1st appellant was sentenced to 120 hours of community service and the 2nd appellant to five months' imprisonment.

2. The facts before the magistrate were that on 22 July 2001 at about 6:25 p.m., Customs officers were on plainclothes duty in the area of Smiling Saukeiwan Plaza, Saukeiwan. They entered the plaza and at shop 83A, they saw the 1st appellant standing behind a 3 1/2 feet tall glass cabinet that stood across the shop's entrance. The shop, the magistrate found, was approximately 30 square feet. It was put to the magistrate that on the glass cabinet were six to seven suspected infringing discs and that a man picked them up and asked the 1st appellant how much they cost. The 1st appellant said $25 a piece. This evidence falls away later as the magistrate was not satisfied as to the finding of the six to seven discs in the premises as he was unable to rely upon the evidence of the two Customs officers who had entered the shop, saying :

" Insofar as the 7 infringing discs (exhibit P5) were concerned, whilst I found some of DW2's evidence suspicious, I also suspected that the Prosecution witnesses did not tell me the whole truth regarding their dealings with the Defendants. I found I could not reject D1 and DW2's evidence in relation to those 7 infringing discs. In the circumstances, I found Prosecution had not proved their case beyond all reasonable doubt in relation to exhibit P6 (sic)."

3. The effect of that finding was that the magistrate could not place sufficient credit upon the evidence of PW1 and PW3 to prove the finding of those seven discs. This disbelief was a significant finding as to the general credit of those two witnesses.

4. The officers pushed aside the glass cabinet and entered the premises. They saw two stacks of suspected infringing discs on the bottom second shelf of the cabinet, one officer pointed them out to the other. The 1st appellant was arrested and cautioned. He told them that the shop was one where his girlfriend, the 2nd appellant worked as a saleslady. She was not present at the premises and later arrived in response to his phone call. She was arrested and cautioned.

5. The officers found that in addition to the seven discs comprising P5, there were 201 infringing discs which, on the evidence of the Customs officers, were found on a lower shelf of the glass cabinet. This was disputed by the defence who led evidence from a witness who was also in the shop that he had brought the discs to the shop and that they were in a black plastic bag on the floor of the premises.

6. The evidence of DW3 as to the bringing of those discs to the shop and the placing of them in the shop was not relied upon by the magistrate who dismissed that evidence as unbelievable. He did rely upon the evidence of PW1 and PW3 as to the placement of those discs. This became important because in respect of the case particularly against the 1st appellant, the magistrate relied upon the positioning of the discs to come to the conclusion at best that the 1st appellant ought to have been aware by general inspection of the premises of the existence of the infringing discs. The evidence, therefore, of the prosecution witnesses as to the finding of those discs and to where they were found, was an integral part of the prosecution case.

7. Further, voir dire the proceedings were held to determine whether or not records of interview of the 1st and 2nd appellants should be admitted. At the close of the prosecution case the magistrate ruled both the records to be inadmissible. He said :

"... At the end of the hearing, I was not satisfied beyond reasonable doubt that the Customs & Excise officers had told me the whole truth regarding their dealings with the Defendants. ..."

8. These two officers were the same officers, PW1 and PW3, whose evidence the magistrate was unable to give credit to in respect of the finding of exhibit P5. There were, therefore, in the case two significant areas where the two witnesses for the prosecution were not believed by the magistrate and their credit cast in some considerable doubt.

9. The magistrate did, however, rely upon their evidence in respect of the finding of the 201 discs at the lower shelf of the glass cabinet and rely generally upon their evidence as to their description of the shop and what they found upon their arrival.

10. Mr Grounds for the appellants in his grounds of appeal argues that it was incumbent upon the magistrate having found in significant areas of the prosecution case that he could not rely upon two of the witnesses because of their lack of credit, to explain why those same two witnesses were worthy of credit in respect of the evidence he found to be true given that the evidence was central to some of the elements of the offence before him. With this, I must agree. Where a magistrate disbelieves a witness in one part of his evidence but believes him in another, it is necessary for him to explain the reasoning which leads him to the conclusion that at one point the witness is telling what he is sure the truth whilst in another part, he cannot rely upon him.

11. I accept wholly from Mr Kwok for the respondent that the magistrate is entitled to select which parts of which witnesses he will believe and disbelieve but when the selection of that evidence cries out for an explanation of his acceptance in the face of other evidence rejected from the same witnesses, an explanation is called for. None is forthcoming in the reasons and this ground of objection must succeed.

12. A further argument was mounted that the magistrate's approach in respect of the question of possession was flawed. The magistrate relied upon the case of R. v. Lewis 87 Cr.App.R.270 Court of Appeal, which says in part :

"... The court rejected this, holding that the following is an adequate direction (conforming to Warner); a person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way what the items were."

13. On that authority, two alternatives are open to a magistrate. It would satisfy the direction for the magistrate to take as a matter of law that when a suspect had the opportunity to learn or to discover in a general way the nature of the item in his possession and he failed to avail himself of it that he was deemed to know what he had in his possession as a matter of law. The second alternative open to him is to say here is evidence of the primary fact that the appellant had, in his possession an item and he did not avail himself of the opportunity to inspect it to find out its nature and therefore I will look at neglect together with all the other evidence to see whether the only proper inference to be drawn is that he must have known the nature of what was in his possession. The Queen v. Law Wai Choi & Another [1997] HKLRD at page 555 was quoted to me where Liu JA said :

"Failure to avail oneself of the opportunity to inspect the contents of a bag one carries is no direct evidence of knowledge. It could not, therefore, be advanced as an alternative to proof of guilty knowledge. Evidently, from the availability of the same opportunity and neglect or failure to take advantage of it, an inference of guilty knowledge may be drawn, and with the other requisite ingredients, guilt of an accused may ultimately be inferred. The judge was wrong in directing the jury that unless both defendants had had no opportunity to inspect the contents of the bag, they could not have succeeded in their claim to a mistaken belief as to its contents. ..."

14. The magistrate does not make it clear in his findings, and I find that it was necessary in all the circumstances of this case that he should, that in finding particularly the 1st appellant in possession of the infringing items he did so on the basis of an inference drawn from all the primary facts before him rather than an assumption of law. This ground of appeal must also succeed and it must succeed in respect of both of the appellants as must the first ground of appeal. Possession is as important to the case in respect of the 2nd appellant as the first. If the magistrate has not been clearly correct in his approach towards the evidence in respect of possession of the 1st appellant, then there must be a lurking doubt in respect of the case against the 2nd appellant.

15. The appeal against conviction in respect of both appellants is allowed and the sentence is set aside. Although no application is before me, in all the circumstances, this matter does not in the public interest warrant a re-trial. There will be no order for retrial.