HKSAR v. LIN, YUNG POK

HCMA485/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 485 OF 2008

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JUDGMENT

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1.  This is an appeal against a conviction for possession for the purpose of or in the course of any trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap. 528. 

2.  The evidence revealed that on 14 November of 2006 a Customs officer, disguised as a civilian customer, went to a shop in North Point.  The officer purchased two different titles of a TV drama series.  A lady dealt with that, and on two occasions left that shop to cross the road to go to another shop, where she was seen to knock on the door, be admitted and come out seconds later carrying the infringing copies in question, for such they were. 

3.  In the course of this the Appellant was observed to be inside that first shop.  I shall call that shop, the first one, “Shop A”, and the shop across the road where the infringing copies were fetched from, I shall call “Shop B.”  In the time of the observation the appellant was seen in Shop A to go to a drawer to remove a document and then later return it to the drawer, and that he then went and stood to the side of a water dispenser in the shop.  He was seen to make no purchase. 

4.  The only other evidence which touched upon the Appellant was the production of a lease.  This was a lease of Shop B.  The lease was produced by PW11.  He knew the premises in question and testified without challenge that he recognized the lease relating to them.  He was not present when the tenant signed the lease and had on no occasion met the tenant.  He could not therefore say, and was not asked, if the Appellant in the dock was the man who had signed the lease.

5.  The question of who was the tenant of Shop B was obviously highly relevant.  The lease could not of itself impliedly assert that it was the Appellant who was the tenant, for that would breach the rule against hearsay.  The lease was admissible in evidence to demonstrate prima facie that a tenancy of the premises had been granted, and been granted to someone with the same name as the Appellant.

6.  In the absence of anything in evidence to suggest that the lease did not have this effect, the court is entitled to construe the document as having that effect.  This does not use anything said in the lease testimonially in the sense that any assertion in it is treated as being true.  The lease is an item of circumstantial evidence whose existence as a relevant fact is proved by real evidence, namely its production to the court from the proper custody of PW11, whose oral evidence admissibly linked it to the premises in question.  Its legal effect was a matter of construction for the court.

7.  Put another way, admissible evidence from PW11 ties the lease to the premises in question and the court construes its terms as having a legal effect, which involves no breach of the rule against hearsay.  It is the existence of the words in the lease as having a legal effect that matters, and not their truth.

8.  The question then arises whether or not there is other evidence in the case which would support an inference that the Appellant was in fact the person to whom the lease had been granted. Of course there was such evidence.  The presence of the Appellant in Shop A, with his looking at paperwork in a drawer there, demonstrated a link between him and that shop.  The fetching of the two separate articles of infringing discs from Shop B across the road, thus demonstrated an obvious link not only between the two shops but between the Appellant and Shop B.

9.  Once the connection was made between the Appellant, with his name Lin Yung-pok, to Shop B, and those premises were connected to the lease that operated to grant a tenancy of them to a man with a name Lin Yung-pok, the inference that the Appellant was the tenant became overwhelming.

10.  The idea that another person called Lin Yung-pok had been granted the lease or that someone else had falsely called themselves Lin Yung-pok and taken the tenancy or that someone had purported to create a tenancy naming someone as a tenant that did not exist but giving them the name Lin Yung-pok, when someone of that name was in the shop opposite where the infringing copies (stored in Shop B) were purchased, was fanciful.  They were not competing inferences.

11.  It is a combination of circumstantial evidence and inference that identifies the Appellant as being the tenant of Shop B.  It is not by hearsay evidence.

12.  Once it was to be inferred that the Appellant was the tenant of Shop B, then, in the absence of contradiction or explanation, guilt was bound to follow as control and possession of the stock of infringing copies with the requisite intent and knowledge was bound to be inferred. The Appellant did not give evidence to explain or contradict.  There was no burden upon him to do so, but the effect was to allow the inference of guilt to run against him.

13.  On the evidence before me, I am sure the Respondents discharged the burden of proof upon them. The conviction is a good one and the appeal against it is dismissed.