HKSAR v. TAM KA KUI

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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. The consolidation of these eight applications arises because all of them are concerned with offences in breach of copyright and exactly the same point on appeal arises in relation to the first six of them.

2. The Applicants in CACC 173/1999, 536/1999, 36/2000, 51/2000, 52/2000 and 56/2000 are represented. It is convenient to deal with these applications first of all.

3. In the first application, CACC 173/1999, the Applicant originally abandoned his application seeking leave to appeal against conviction and, on 8 September 1999, his sentence application was dismissed in this court. The Applicant now seeks leave to treat his abandonment of the application relating to conviction as a nullity. He was charged firstly with possession of obscene articles, namely 357,679 video compact discs ("VCDs") for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. The second charge related to the Applicant's possession, for the purpose of trade or business, of infringing copies of copyright works, namely 92,242 VCDs, with a view to committing any act infringing the copyright licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap. 528 ("the Ordinance"). The Applicant was convicted after trial in the District Court and he was sentenced on 22 March 1999 to fifteen months' imprisonment on the first charge and to three years' imprisonment on the second, with two years of this sentence to run consecutively, making three years and three months in all.

4. In the second application, CACC 536/1999, the Applicant pleaded guilty in the District Court to possessing 13,287 music compact discs and 100 VCDs which were infringing copies of copyright works, contrary to section 118(1)(b) and section 119(1) of the Ordinance. He was sentenced on 5 October 1999 to twenty months' imprisonment. He now seeks leave to appeal against conviction out of time.

5. In the third application, CACC 36/2000, the Applicant pleaded guilty in the District Court to a charge brought under the same sections of the Ordinance relating to the second application. In this case, the particulars related to 255,154 VCDs for which he was sentenced on 7 January 2000 to two years' imprisonment. The Applicant now seeks leave to appeal against conviction.

6. In the fourth and fifth applications, CACC 51/2000 and 52/2000, the Applicant is the same person.

7. In the fourth application, CACC 51/2000, there were two charges which were brought under the same sections of the Ordinance, namely sections 118(1)(d) and 119(1), and related to 78,138 VCDs and 244 compact discs in the first charge and to 14,735 VCDs in the second. The Applicant pleaded guilty in the District Court to both charges. He was sentenced on 9 November 1998 to concurrent terms totalling two years and four months.

8. In the fifth application, CACC 52/2000, there were two charges and again the Applicant pleaded guilty to them when he appeared in the District Court. The first was brought under section 118(1)(d) and section 119(1) of the Ordinance. This related to 25,047 music compact discs and to 60,000 VCDs. The second charge related to the possession of obscene articles under section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, namely 25,890 VCDs. On 2 December 1998, the Applicant was sentenced, in overall effect, to serve an additional one year and eight months to the sentence passed in CACC 51/2000, making the combined total sentence involved in these two applications four years' imprisonment. The Applicant in the fourth and fifth applications now seeks leave out of time to appeal against these convictions.

9. In the sixth application, CACC 56/2000, the Applicant was convicted after trial in the District Court of possessing infringing copies of copyright works, namely 35,033 VCDs and 4,369 music video compact discs, contrary to sections 118(1)(d) and 119(1) of the Ordinance. On 28 August 1998, he was sentenced to ten months' imprisonment. He now seeks leave out of time to appeal against conviction. In his case, he is currently serving terms of imprisonment in relation to other offences which are not affected by this application.

10. In all six applications the point which has arisen in relation to the offences brought under sections 118(1)(d) and 119(1) is one with which the court is familiar having, on 7 March 2000, dealt with the consolidated appeals in CACC 38/2000 and 67/2000 where the same point arose.

11. It is conceded by Mr Zervos, who appears on the Respondent's behalf, for the same reasons given by this court in CACC 38/2000 and 67/2000 that the convictions with which we are concerned in the first six applications cannot stand.

12. It is unnecessary to rehearse in any detail what was said in the judgment given on the last occasion. Suffice it to say, offences charged under section 118(1) which are subject to the penalties provided by section 119(1) of the Ordinance are summary offences which, unless accompanied by an indictable offence, cannot be, and should not have been, transferred to the District Court. The provisions of section 88(1) in Part IV of the Magistrates Ordinance, Cap. 227 were not complied with. Putting this another way, the District Court had no jurisdiction over these offences unless they were transferred to the District Court with an indictable offence giving the District Court jurisdiction, under the provisions of sections 74 and 75 of the District Court Ordinance, Cap. 336, to deal with them.

13. It is only right to say that the section 118(1) offences under the Ordinance were transferred at a time when it was believed they were indictable offences and, as soon as the mistake was realised, the Department of Justice was the first to bring attention to the problem which had arisen.

14. In CACC 173/99 and CACC 52/2000, the first and the sixth of these applications, the charges brought under the Ordinance were accompanied by offences charged under section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance. However, these were summary offences and were transferred to the District Court because it was believed that the section 118(1) offences under the Ordinance were indictable. Accordingly, the District Court had no jurisdiction to deal with these offences now that it has been established the section 118(1) offences were not indictable.

15. The purported transfers of all the charges relating to the first six applications were therefore null and void because the magistrates who transferred them had no jurisdiction to do so. Jurisdiction over all these offences therefore remains vested in the magistrates' court.

16. The error which has arisen in all of these cases seemingly came about because on 27 June 1997, the Copyright Ordinance, Cap. 39 was replaced by the present Ordinance, Cap. 528. Section 5(1) of Cap. 39 was replaced by section 118(1) of Cap. 528. However, while offences under section 5(1) of the old ordinance were liable to certain penalties on conviction on indictment, no provision was made for section 118(1) offences to be tried on indictment. This explains where the error was made in all of these six applications.

17. Turning now to the remaining applications, the seventh application, CACC 13/1999, where the Applicant appears in person seeks leave out of time to renew an appeal against conviction and to appeal against sentence. These applications are misconceived. In fact, the Applicant has today indicated that he does not wish to proceed on his application relating to conviction and we can formally indicate, if need be, that we dismiss this application because, on 30 August 1999, this court dismissed the application after a hearing as to its merits. He was charged, firstly, with possession 60,339 VCDs which were infringing copies of cinematograph films, contrary to section 5(1) of the Copyright Ordinance, Cap. 39, and, secondly, with a similar charge brought under the same section, relating to 4,948 compact discs. These charges, on which he was found guilty after trial, were indictable and the transfer to the District Court was perfectly proper. He was sentenced on 21 December 1998 to a total of two years' imprisonment. His co-defendant received a lower sentence in order that his plea of guilty could be reflected in the sentence imposed on him. There are no grounds for giving leave out of time in relation to the sentence application. It appears that it was an application prompted as the result of letters received by the first six applicants, and may be others, from the Department of Justice which were sent to them in order to point out the procedural error that had been made in having their cases transferred to the District Court. The procedural error did not apply to the Applicant in CACC 13/1999 although he probably thought that it did.

18. In the eighth application, CACC 27/1999, precisely the same position applies as it did to the previous application, CACC 13/1999. The Applicant was convicted in the District Court of possessing 59,188 VCDs and 12,988 music compact discs which were infringing copies of works in which copyright subsisted. The offence was brought under the provisions of section 5(1) of the Copyright Ordinance, Cap. 39. This was an indictable offence with which the District Court had jurisdiction to deal. The Applicant was sentenced on 12 January 1999 to a term of two years' imprisonment. The Applicant was originally seeking leave to treat the abandonment on 7 July 1999 of his application for leave to appeal against conviction as a nullity. This was not pursued and we can dismiss it. In addition, he now seeks leave to appeal out of time against sentence. However, this does not appear to have been an appropriate application. Mr Zervos pointed out there had been a previous such application which the Applicant abandoned and, in effect, we are therefore being asked to treat his previous abandonment as a nullity. There is no merit to the application whatever and we do not propose to give leave to do so. Again, he appears to have been prompted to make his application by having read a letter from the Department of Justice to another applicant, whoever he may be, who merited a letter being sent to him.

19. Accordingly, for the reasons we have given, the convictions which were recorded in CACC 173/1999, 536/1999, 36/2000, 51/2000, 52/2000 and 56/2000 must be quashed. For these purposes, we treat the abandonment of the application for leave to appeal against conviction as a nullity in CACC 173/1999, we give leave out of time in CACC 536/1999, 51/2000, 52/2000 and 56/2000 and we give leave in CACC 36/2000. Treating this hearing as the appeal, we allow the appeals in each of those cases and quash the convictions.

20. In CACC13/1999 and 27/1999, we refuse leave and those applications are dismissed.