HKSAR v. NGAI LAI LING

HCMA 499/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 499 OF 2005

(ON APPEAL FROM TMCC 99 OF 2004)

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J U D G M E N T

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1.  The Appellant is a woman of previous good character in her early 40s.  Together with another person, she owned and operated a shop in Tuen Mun.  She was in the shop on 29 April 2004 when it was raided by customs officers accompanied by a representative of a record company.  The officers seized from the shop 150 optical discs believing them to be infringing copies.  On the basis that 8 of those discs were indeed infringing copies, a charge was laid against the Appellant under sections 118(1)(d) and 119(1) of the Copyright Ordinance, Cap.528.  She was charged with being in possession for the purpose of, or in the course of, trade or business of copyright infringing copies, namely those 8 discs, with a view to committing copyright infringement.  To this charge she pleaded not guilty, but was convicted after trial before Colin Mackintosh, Esq. in the Magistrate’s Court at Tuen Mun.  She now appeals against her conviction.

2.  Two perfected grounds of appeal against conviction have been filed on her behalf.  They read:

“	1.	The learned Magistrate erred in finding that the prosecution had proven that the discs presented at trial were the same discs as those seized on the day of the offence.
	2.	The prosecution failed to provide the defence with material necessary for the defence of the case.”

3.  I have given careful consideration to all the points urged in support of Ground 1.  The main points were that the discs were sealed not in the shop where they were seized but back at the Customs & Excise’s premises; that there was nothing unique in the way in which the boxes were sealed; and that the customs officer who seized and sealed the discs said that he was not sure that the discs produced in court were those he had seized and sealed.  As to the first point, the customs officer’s evidence is that he seized the discs in the shop, brought them back to the Customs & Excise’s premises in bags, and sealed the discs in boxes at those premises.  The tenor of the evidence is of one continuous exercise performed by the same officer.  So, in my view, there is nothing in the first point.  As to the second point, I am satisfied that the sealing was sufficiently distinctive to put the matter beyond reasonable doubt.  And as to the third point, the officer’s personal lack of certainty is neither here nor there.  He was responsible for the seizing and the sealing of the discs.  The bringing to court of the discs was properly proved by other evidence.

4.  Turning to Ground 2, I am satisfied, upon a careful consideration of everything urged in support of it, that there was no misconduct on the part of the Customs and Excise or the prosecution.  I am also satisfied that there has not been any non-disclosure or late disclosure such as to prejudice the defence or to make it just to disturb this conviction.

5.  In the result, both grounds of appeal fail, and the appeal is dismissed.