HKSAR v. WAN HON SIK

HCMA 526/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 526 OF 2001

(ON APPEAL FROM NKCC 7783/2000)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Browne sitting at North Kowloon Magistrates Court on 11 May 2001 of one charge of offering for sale 909 VCDs and 16 DVDs being infringing copies of copyright works for the purpose of trade and business contrary to s.118(1)(e)(ii) and s.119(1) of the Copyright Ordinance, Cap. 528.

2. The evidence for the prosecution came from 2 Customs Officers who gave evidence that they had seen the appellant inside a shop in the Sino Centre in Mongkok. The officers noticed suspected pirated compact discs displayed on the walls of the shop. They said that they heard the appellant telling people in the shop that the shop had new and old Japanese compact discs available. When they entered the shop, the appellant admitted that he was the keeper of the shop. A record of interview with the appellant was admitted into evidence after a voir dire as to its admissibility. In that record of interview, the defendant had admitted that the discs in the shop were pirated, and that he had been "introducing" Japanese drama series to customers. He repeated that he was the keeper of the shop responsible for selling discs in the shop. The discs which are the subject to the charge were found by the Customs Officers in the shop. Although the Magistrate did not say so expressly in his statement of findings, it can safely be inferred that they were the discs on display in the shop.

3. It was suggested to the Customs Officers in cross-examination that the appellant was not touting at the shop but merely looking at the compact discs on display. It was also suggested to them that the record of interview was signed by the appellant as a result of inducements and that the answers did not reflect what the appellant had actually said. Those allegations were denied.

4. The appellant did not give evidence. However, he called a witness to say that the appellant was simply a customer of the shop while he himself was the person looking after the shop. He said that he was not in the shop at the time of the Customs Officers' raid because he had temporarily stepped out to go to the toilet.

5. It was admitted that the discs in question found inside the shop were all unlicensed infringing copies.

6. The learned Magistrate rejected the evidence of the appellant's witness and accepted the evidence of the Customs Officers.

7. Although represented by counsel, at trial the issue was not taken as to whether even if the defendant was the keeper responsible for selling infringing compact discs, he had "offered the relevant discs for sale" as the charge alleges, simply by reason of the fact that they were displayed in the shop.

8. The learned Magistrate himself raised that issue and the decision of the English Court of Appeal in Fisher v Bell [1960] 3 AllER 731 in his statement of findings. He said he could not find any Hong Kong case on this point.

9. In Fisher v Bell, Lord Parker, CJ, was considering the meaning of the words "offers for sale" in a penal statue (s.1 of the Restriction of Offensive Weapons Act 1959). In that case a "flick" knife had been displayed in a shop window in front of a ticket with the words "Ejector Knife - 4 shillings". Lord Parker decided that the proper interpretation of the words "offers for sale" required him to look at the general law and in particular the law of contract. He said this:

"The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I think that most lay people would be inclined to the view (as, indeed, I was myself when I first read these papers), that if a knife were displayed in a window like that with a price attached to it, it was nonsense to say that that was not offering it for sale. The knife is there inviting people to buy it, and in ordinary language it is for sale; but any statute must be looked at in the light of the general law of the country, for Parliament must be taken to know the general law. It is clear that, according to the ordinary law of contract, the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly the general law of the country. Not only is that so, but it is to be observed that, in many statutes and orders which prohibit selling and offering for sale of goods, it is very common, when it is so desired, to insert the words "offering or exposing for sale", "exposing for sale" being clearly words which would cover the display of goods in a shop window. Not only that, but it appears that under several statutes - we have been referred in particular to the Prices of Goods Act, 1939, and the Goods and Services (Price Control) Act, 1941 - Parliament, when it desires to enlarge the ordinary meaning of those words, has a definition section enlarging the ordinary meaning of "offer for sale" to cover other matters including, be it observed, exposure of goods for sale with the price attached (1).

In those circumstances I, for my part, though I confess reluctantly, am driven to the conclusion that no offence was here committed."

10. The learned Magistrate suggests that this is not the approach that should be adopted by the courts in Hong Kong. He says that the distinction between an invitation to treat and an offer for sale in the law of contract is not relevant to the interpretation of a criminal statute. I respectfully disagree. The fact that s.118 of the Copyright Ordinance also penalises a person who "exposes" infringing discs "for sale" indicates that the words "offers for sale" is intended to bear the restricted meaning accorded to it by the general law. Otherwise it would not attempt to penalise those who exposed such items for sale.

11. The learned Magistrate could not therefore, simply on the basis that they were on display, find that the appellant was offering the infringing discs for sale.

12. It has been argued by Mr Madigan since the subsection refers to alternative modes of committing the offence which it creates, it is always open to a court to return a verdict of guilty on the basis of the alternative mode of committing the offence, notwithstanding the fact that the particulars of offence in the charge do not allege that the offence was committed in that way. The learned Magistrate, he says, could have returned a verdict of guilty on the basis that the appellant had exposed these discs for sale.

13. Mr Madigan has not referred me to any authority for such a wide proposition. While it is possible for a court to return an alternative verdict, if the elements of the offence alleged in the charge include all the elements of the alternative mode of committing the offence, the proposition put forward by Mr Madigan cannot be correct. A defendant is entitled to know in what way the prosecution is alleging that he committed the offence with which he is charged.

14. By s.119(d) of the Magistrates Ordinance, Cap. 227, this court does has the power to make any "order in the matter as (it) thinks just and by such order exercise any power which the Magistrate might have exercised."

15. In my view, it would not be just for this court to exercise the Magistrate's power to amend the charge under s.27 of the Magistrates Ordinance, Cap. 227 so as to uphold this conviction, bearing in mind the stage these proceedings have reached, and that the appellant would not be accorded the safeguards otherwise given to him by s.27(3) of the Magistrates Ordinance.

16. I accordingly allow the appeal and quash the conviction.