R. v. RANK XEROX (HONG KONG) LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO.1104 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This is an appeal against a forfeiture order made by the Magistrate in terms of s.5(3) of the Copyright Ordinance, Cap.39. Section 5(3) states as follows :

"(3) Where a person is charged with an offence under subsection (1) or (2) the court may, if it is satisfied that any article seized by an authorized officer under section 6 in connexion with the offence -

(a) is an infringing copy of a work or other subject matter in which copyright subsists under the Act or this Ordinance;

(b) is a plate which has been used, or is intended to be used, for making infringing copies of any such work or other subject matter; or

(c) has been used in connexion with any offence under the Act or this Ordinance,

order that the article be -

(i) destroyed;

(ii) delivered up to the person who appears to the court to be the owner of the copyright in question; or

(iii) disposed of in such other way as the court may think fit,

whether or not the person charged is convicted of the offence with which he was charged."

2. In this case, two men had been charged with offences contrary to ss.5(1) and 5(2) of the Copyright Ordinance which related to the possession of infringing copies of literary work and of three photocopying machines used for making these infringing copies. One of them had pleaded guilty to the offences. The forfeiture proceedings related to the three photocopying machines. The photocopying machines had been seized by customs officers who were in terms of s.17(a) of the Customs and Excise Ordinance, authorised to do so.

3. Miss Cruden who appears on the appeal, although not in the court below, submits that the forfeiture proceedings were separate and distinct from the proceedings dealing with the two offenders against ss.5(1) and 5(2) of the Ordinance. Following the learned Magistrate's disposal of the plea of guilty it fell within his jurisdiction to make an order disposing of goods seized in connection with the offences. That included, of course, the three photocopying machines. Within that jurisdiction, he had an absolute discretion to determine how to dispose of these machines, and upon the application of the Appellant in this case, the owner of the machines, to have the machines returned to it, the Magistrate then had to decide whether to return the goods to the Appellant or to dispose of them in some other way.

4. The proceedings commenced on the basis, and it was never in contention, that the photocopying machines had been seized in conformity with the provisions of s.5(3). The goods had been proved to have been seized by an authorised officer in connection with offences under sub-sections (1) and (2). Had the Appellant not appeared to contest the disposal of the goods, the learned Magistrate would have been perfectly entitled to order their forfeiture there and then, without the need for further evidence. I, therefore, rejected Miss Cruden's submission that it was, specifically for the purposes of the forfeiture proceedings, encumbent upon the Crown to prove beyond reasonable doubt that the goods had been seized by an authorised person.

5. Thereafter, in accordance with the ruling in R. v. CEC Finance Ltd. MA No.451 of 1992, the learned Magistrate had to consider the question of their disposal :

"...in accordance with such opinion and with the benefit of such further evidence and argument which the parties may adduce and advance .... The discretion to order forfeiture being unfettered, the question whether or not to so order is to be approached from a neutral starting point, with both parties on a level playing field, so to speak, and each with the onus of proving on a balance of probabilities any fact which he or it asserts if that fact is not admitted by the opposite party. That is how the question is to be approached. And it is to be answered by reference to what is just in all the circumstances as the magistrate finds such circumstances proved or admitted."

6. Miss Cruden submits that the Magistrate was at fault in placing the burden throughout the proceedings on the Appellant to establish its right to the goods. I do not agree. The learned Magistrate was considering the application by the Appellant that he should not order forfeiture of the machines because, as the owner of the machines, it was an innocent party to the offences committed by the two men. The salesman who had been responsible for the sale of the machines was called to give evidence on behalf of the Appellant. Much of the learned Magistrate's findings concerned an analysis of that evidence, and a determination by him as to its effect on his ultimate decision. A fair reading of his findings would not, in my view, suggest that he had placed the burden on the Appellant to establish that the goods ought to be returned to them. He referred to, and regarded himself as bound by the principles set out in R. v. CEC Finance Ltd. He recognised that both parties started from a neutral standpoint and that each case was to be decided on its own merits.

7. I am satisfied that in exercising his unfettered discretion in this matter, the learned Magistrate proceeded in a proper judicial manner. It is not for me to decide whether or not I would have reached the same conclusion, but merely to ensure that he has exercised his discretion judicially. However, it might be helpful to the parties to know that on the evidence of the record, I would have come to the same conclusion. I am certainly satisfied that the learned Magistrate properly and fairly dealt with the evidence before him, especially the evidence of the salesman. It seems to me quite apparent that the salesman allowed commercial factors to cloud his judgment when renting these machines in circumstances which were obviously highly suspicious.

8. Miss Cruden also attacked the learned Magistrate's findings in relation to inferences which he drew. I do not find any merit in this submission and I am satisfied that the inferences the Magistrate did draw were perfectly proper inferences, which he was entitled to draw in the circumstances.

9. This appeal is dismissed.