HKSAR v. CHAN HO

CACC 383/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 383 OF 2005

(ON APPEAL FROM DCCC NO. 452 OF 2004)

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J U D G M E N T

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1. The applicant was convicted on 17 August 2005 after trial before Deputy Judge Wahab in the District Court of a single charge of making for sale or hire infringing copies of copyright works without the licence of the copyright owner, contrary to section 118(1)(a) and section 119(1) of the Copyright Ordinance, Cap 528.

2. The particulars of offence stated that on or about 7 April 2003, at Sonice Industrial Limited, Flat B, 9/F, Man Foong Industrial Building, 7 Cheung Lee Street, Chai Wan, the applicant trading as New City Film Video Distribution Company, without the licence of the copyright owner, made for sale or hire 6 video compact discs (“VCDs”) being infringing copies of copyright works, namely films.

3. The applicant now seeks leave to appeal against conviction.

4. The facts of this case are very simple and are mainly contained in the facts admitted by both parties at the trial pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221.  Through Asia Television Limited (“ATV”), the production and distribution rights in respect of the film “Xiao Zhuang Epic” (“the film”) for Hong Kong and Macau were held by Keenwood Limited (“Keenwood”) and Regentact Company Limited (“Regentact”).  On 7 April 2003, a Customs and Excise officer took two VCDs (Exhibit P2) from each of the three production lines in operation at the premises of Sonice Industrial Limited (“Sonice” or “D2”) in the presence of Wong Ka-po (“D1”).  Pausing here, D1 and D2 were originally jointly charged with the applicant for copyright offences; I shall return to this subject later.  I now continue with reciting the admitted facts.  D1 provided to the Customs and Excise officer a copy of a certificate of distribution rights (Exhibit P3) which had been furnished to him by the applicant and a copy of a commissioning letter (Exhibit P4), both documents being in respect of the film.  ATV, Keenwood and Regentact had not authorised D1, D2 or the applicant to sell, lease, produce, or distribute copies of the film.  On 19 September 2003 at the Customs and Excise offices at Kai Tai, the applicant was shown Exhibit P2, and after viewing the exhibit, he confirmed that those were VCDs he had commissioned D2 to manufacture.

5. In his notice of application, the applicant stated that he was originally charged with two other defendants and the case against the three of them was fixed for trial in March 2005.  The two other defendants were charged with manufacturing copies infringing copyright whereas he was charged only with a copyright infringing offence.  The applicant further wrote (as translated):

“After pointing out that it was not fair to me, the Judge thus severed the case and refixed it.  By the time of the trial itself in July 2005, the prosecution, however, could not present sufficient evidence, the charges which the first and second defendants faced were thus dismissed one hour later by the Judge, and they were discharged accordingly.  Yet, I was still being charged with offence(s) of infringing copyright.  The lawyer who was assigned to me by the Legal Aid Department was replaced (by another one) due to a number of reasons; the counsel who (then) represented me thus could not look deeply and thoroughly into the case, which led to a conviction of one of manufacturing (copies) infringing copyright in me, instead of the original (which was a) copyright infringing offence, by the Judge.  The counsel, however, was not aware of this and did not raise any defence.  That my case was tried in this manner, I think, is highly unfair to me. ….”

6. The applicant has addressed me today at some length, repeatedly to say he does not understand why he was convicted, and the points made by him are similar to what he had set out in his Notice of Application.

7. It is abundantly clear from the re-re-amended and consolidated charge sheet that two other defendants, namely, D1 and D2, were originally charged together with the applicant, as D3, before the District Court.  There were altogether four charges laid with only the 2^nd charge against all three defendants.  The 2^nd charge was for the making for sale or hire infringing copies of copyright work, which was in fact the charge of which the applicant was convicted.  The other three charges were against D1 and D2 only, of which one charge was for possession of infringing copies of copyright work whereas the two other charges were for making for sale or hire infringing copies of copyright work. 

8. Thus it is incorrect that the charge against the applicant had been changed from a “copyright infringing offence” to one of “manufacturing copies infringing copyright work” as alleged by the applicant.

9. Regarding the two other defendants, the judge noted in his Reasons for Verdict that the prosecution had offered no evidence against them, that the only one remaining for trial was the applicant, and that the only charge he faced was the 2^nd charge that alleged his making for sale or hire infringing copies of copyright work without the licence of the copyright owner.  Thus the allegation made by the applicant that there was insufficient evidence against the two other defendants resulting in the charges against them being dismissed is not entirely correct. 

10. Regarding the applicant's allegation that his counsel “could not look deeply and thoroughly into the case”, the applicant was unable to elaborate, save to say that two exhibits had not been produced buy his counsel at trial.  It is apparent from the Reasons for Verdict that this allegation about the exhibits cannot be true. 

11. I have examined the Reasons for Verdict given by the judge very carefully in order to see if the allegation against counsel for incompetence can arguably be supported. 

12. It appeared that at the trial, the applicant raised three matters for his defence, namely,

(1) He had obtained from the Movie Producers and Distributors Association (“MPDA”) a certificate of distribution rights (Exhibit P3) regarding the film.

(2) He had a contract with Gui Zhou whereby he obtained copyright of the film for Mainland China. 

(3) He commissioned the making of VCDs of the film not for the purpose of sale or hire because the VCDs were meant as gifts for workers attending a Labour Day celebration function on the Mainland.

13. The judge dealt with the three matters raised by the applicant in some detail in his Reasons for Verdict. 

14. He noted that it was admitted that ATV, Keenwood and Regentact were the holders of the production and distribution rights in respect of the film for Hong Kong and Macau and that they had never authorised the applicant to sell, lease, produce or distribute copies of the film.  Thus, MPDA, who had apparently issued a certificate of distribution rights to the applicant (Exhibit P3) was not in a position to grant or confer rights regarding the copyright of the film.  

15. As to the allegation that the applicant had a contract with Gui Zhou whereby he obtained copyright of the film for the Mainland, the judge noted that even if so, the applicant only gained copyright for the Mainland, which did not include the territories of Hong Kong and Macau.  Thus, it was unlawful for the applicant to have commissioned the manufacturing of the VCD copies of the film in Hong Kong at D2's premises.

16. Regarding the allegation that the applicant commissioned the manufacturing of the VCDs not for sale or hire but the copies were meant to be gifts for workers attending a Labour Day celebration function on the Mainland, the judge rejected the applicant's evidence.  The judge said:

“I was convinced the Defendant was trying to bluff his way out with a tapestry of lies.”

17. The judge noted that Exhibit P4 indicated that the applicant commissioned the making of some 78,000 discs (3,000 sets, each set covering 26 episodes).  Given the number of discs commissioned to be made, the judge concluded that the only reasonable and irresistible inference was that the discs were made for sale or hire.

18. Since the applicant is, save for the limited way stated above, not able to elaborate on how his counsel at trial had failed him as not being able to look deeply and thoroughly into his case, having considered the three matters raised by him in his defence before the judge (and repeated before me) and how the judge had dealt with them, I have come to the view that this ground is not made out.

19. In my judgment, the applicant has not raised any arguable ground for his intended appeal against conviction.  His application must be dismissed.

20. I advise the applicant that he is entitled to make a fresh application to the Court of Appeal, which must be made within 14 days.  I warn the applicant that when dealing with his fresh application, if it is made, if the Court of Appeal is of the view that his application has no merit, it can order a loss of the time that he has spent in custody to be taken away from the counting of the service of his term of imprisonment.