HKSAR v. LAI MEI PO

HCMA761/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.761 OF 2002

(ON APPEAL FROM NKCC 3120 OF 2002)

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J U D G M E N T

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1. The appellant was convicted on 10 July 2002 of one charge of selling infringing copies of copyright works, one charge of exposing for sale infringing copies of copyright works and one charge of possession for the purpose of, in the course of or in connection with any trade or business of infringing copies of copyright works. She was sentenced to nine months' imprisonment on the first charge, four months' on the second charge and nine months' on the third charge, all sentences to run concurrently. She now appeals the conviction.

2. The prosecution case was that on 19 November 2001 at about 7:30 p.m., a group of Customs officers entered the basement of Golden Building Shopping Centre in Sham Shui Po. One of the Customs officers posed as a customer and the appellant was inside the counter at one side of a shop entered by the officer. He testified that she was shouting "There are many latest software. Feel free to choose". The Customs officer chose certain software, he was given a piece of paper with numbers on it and was told by the appellant to take the paper to another counter to make payment and collected the goods there. He paid at that place for the goods and after some five minutes he received the goods. One of the three works was admitted to be an infringement of copyright.

3. On a display rack at the front of the shop were found 14 CD-ROMs which were admitted to infringe copyright and which were for sale without the licence of the copyright owner. At the point where the second man, who was paid by the Customs officer, was standing, the officer found the carton box in which the items (subject of the third charge) were found and it was admitted that they were infringing copies of sound recordings in which copyright subsisted for sale without the licence of the copyright owner, and that the CD-ROMs were infringing copies of literary work in which copyright subsisted and were for sale without the licence of the copyright owner.

4. Both of the Customs officers' team who gave evidence maintained that they had no knowledge that there were raids of two shops that night in the premises. The appellant did not give evidence but called the security officer at Golden Building Shopping Centre where the shop was situated who testified that officers of Task Force 3 of the Customs and Excise Department raided Shops 2 and 42 in the basement.

5. It was the defence case that the matter did not proceed as described by the Customs officers, that PW1 did not pose as a customer, that evidence as to the using of marked money was suspected and that there were discrepancies in the evidence of PW1, PW3 and PW4, the latter being in charge of the Customs officers at the time as to the instructions given and received prior to the operation. It was further submitted that the shop was operated as a legitimate enterprise and it was only the second man who was carrying on the business of selling infringing discs and that the appellant was in no way involved.

6. The basis of the appeal is that in the evidence of PW1, PW3 and PW4, there were a number of discrepancies and a number of matters which had been raised which, it is argued, made the credit of these witnesses suspect and was such as should have been dealt with by the temporary magistrate who heard the case in a manner from which he could be seen have directed his mind to the problems and resolved them.

7. Mr Grounds for the appellant refers me to R. v. Chong Kam-sau, Magistracy Appeal No.859 of 1985 where O'Connor J said :

"... Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

8. In his Statement for Findings, the temporary magistrate set out the prosecution and the defence case and referred to the various discrepancies and other matters affecting the credibility of witnesses.

9. Mr Grounds argues that there were more discrepancies than were referred to by the magistrate. However, I am satisfied that all major matters were set out by him and were therefore in his mind at the time when he made his decision. Having set out the prosecution and defence case, he said this :

" I have carefully considered all the evidence before me and also the submission made by the Defence. I find that PW1 is a credible and reliable witness. He was unshaken under the extensive cross-examination by Mr. Fred Lee for D1. I accept his evidence as an accurate account of what took place in the evening of 19th November 2001. I do not find that the Defence submission has cast any doubt on the prosecution case.

I find that D1 and D2 operated as a joint enterprise in the shop selling infringed copies of discs. I am satisfied beyond reasonable doubt that D1 did sell the CD-ROM, being the subject matter of the 1st Charge, in the manner as described by PW1. The taking of order from and giving of directions to PW1 were part and parcel of the process of selling the infringed disc.

On the evidence before me, I am also satisfied beyond reasonable doubt that an irresistible inference can be drawn that D1 had knowledge and control of :-

(a) the 14 CD-ROMs, being the subject matter of the 2nd Charge, which were being exposed on a front display rack in the shop for sale; and

(b) the 53 MP3 music CD-ROMs and 465 CD-ROMs, being the subject matter of the 3rd Charge, which were being kept for sale in the shop under the counter where D2 was standing.

..."

10. Miss Anna Lai for the respondent referred me to the case of R. v. Sheik Abdul Rahman Bux and others [1989] 1 HKLR 1 where Roberts CJ said :

" It was argued for the defendants that the judge should have included in his judgment a careful dissection of each piece of evidence on which there could be said to have been some inconsistency or conflict, whether between the evidence of different prosecution witnesses or between different parts of the evidence of the same witness.

This would place a wholly unreasonable burden on a trial judge. In our view it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless, having taken them into account, he is prepared to believe the various witnesses involved, save to such an extent as he may specify.

..."

11. Roberts CJ adopted what was said in R. v. Chan King-man [1980] HKLR 105 which affirmed R. v. R. E. Low [1961] HKLR 13 where Blair-Kerr J said at page 82 :

" ... But it must be remembered that the district judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the district judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the district judge's findings if, having regard to the whole of the evidence, such findings appear reasonable.

..."

These words, of course, apply to a magistrate who sits in the same position as a District Judge being judge and jury.

12. As I have set out above, the magistrate took into account in coming to his decision all of the matters set out in the address by defence counsel at the close of the evidence.

13. I am satisfied that the magistrate showed that he was aware of the inconsistencies and the matters affecting the credit of witnesses as they existed in the evidence and that he had them in mind at the time when he reached his decision. I further considered whether the conviction was unsafe and unsatisfactory, and I find that it is not. The appeal against conviction is dismissed.