HKSAR v. CHAN SUM FUK AND ANOTHER

CACC 228/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 228 OF 2002

(ON APPEAL FROM DCCC NO. 69 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

The Facts

1. On 19-20 October 2001, Customs Officers kept observation on Block 1, Hong Kong Garden, Tsing Lung Tau, Tsuen Wan (the building) for copyright infringement offences.

2. Tang Chun-ming (D1) entered the building at 10:45 p.m. on 19 October 2001 with a plastic bag containing a trolley. He went up to the 15th Floor of the building.

3. At about 4:15 a.m. on 20 October 2001, D1 walked out of the building, carrying two plastic bags. He was intercepted and arrested. The two plastic bags were found to contain 1,000 compact discs for computer programs and 272 were infringing copies.

4. The Customs Officers, led by D1 raided Flat E on 15 Floor of the building (the flat). Chan Sum-fuk (the 1st applicant) opened the door and Tsoi Ming-wah (the 2nd applicant) was found sitting on the side of a bed in the sitting room. The applicants are husband and wife.

5. There were two rooms in the flat. In one of the rooms, a set of computer connected to printer, a compact disc duplicator with writers, a compact disc duplicator with ROM drive and 5 compact disc writers were found. Beside the printer, there was a pile of compact disc covers. On a table, there was a pile of infringing compact discs.

6. In the other room, carton boxes of infringing compact discs with covers were found. They were each put in a white paper envelope.

7. Of the 12,839 compact discs found inside the flat, 1,757 pieces were infringing copies. There were also 5,900 blank compact discs.

8. The only furniture in the flat included a mattress on the floor, a TV set and a fridge. There was no chair. The 1st applicant had keys to the flat. The applicants' luggage was also found inside the flat.

9. The 1st applicant came to Hong Kong as a visitor on 10 September 2001 and was permitted to stay until 9 October 2001. The 2nd applicant came on 25 November 1998 and was permitted to stay until 22 December 1998. As visitors, the applicants were prohibited from taking any employment or establishing or joining in any business.

The Charges

10. D1 and the applicants were jointly charged with the 1st and 2nd charges of possession of infringing copies of copyright works for the purpose of trade or business, the 3rd charge of possession of an article, knowing or believing it to be used or intended to be used to make infringing copies for sale or hire or trade or business, and the 6th charge of making infringing copies of copyright works for sale or hire.

11. The 1st applicant and 2nd applicant separately faced the respective 4th charge and the 5th charge of breach of condition of stay to which they both pleaded guilty.

12. The 1st charge related to the 272 infringing copies found in the possession of D1 at the time of his arrest. The 2nd charge related to the 1,757 infringing copies found inside the flat. The 3rd charge related to the equipments for manufacturing the infringing copies and the 6th charge alleged that D1 and the applicants together made the infringing copies, the subject matters of the 1st and 2nd charges.

The Prosecution Case

13. The prosecution evidence was not really challenged. The prosecution invited the court to infer that D1 and the applicants were jointly in possession of the infringing copies and the equipments and that they were responsible for making such infringing copies.

The Defence case

14. D1 denied the charges and claimed to be ignorant of the illicit business. He said he was engaged by Hung Chai to work as a delivery worker. On the night in question, Hung Chai told him to go to the flat to collect some CDs and he went with a trolley. It was the 1st applicant who opened the door for him. He waited in the flat for 5 hours and at about 4 a.m. Hung Chai told him to take two bags of compact discs to Wan Chai.

15. D1 said he did not know the discs were illegal. He was told they were just Taiwanese copies. He was intercepted when he was on his way to take a transport to go to Wanchai MTR Station.

16. The 1st applicant also claimed to be ignorant of the contents of the boxes and the nature of the equipments. He said a cousin took him and the 2nd applicant to the flat on 18 October 2001 and the purpose was to visit the seashore. The cousin then went to the supermarket and never returned that night. He just watched television and at about 11 p.m. D1 and Hung Chai arrived.

17. The 1st applicant said he watched TV and had gone for a ramble on the seashore on19th October 2001. He said he did not have keys to the flat and it was his cousin who opened the door for him. His cousin intended to take him for a visit to some fellow villagers in Tsing Yi, but had to leave after receiving a telephone call.

18. The 1st applicant said he had met D1 on the previous night and at 11 p.m. on 19 October 2001, D1 came again and took away two plastic bags from the sitting room.

19. The 2nd applicant elected not to give evidence. She also called no witness.

The Judge's Findings

20. Deputy Judge Browne, sitting in the District Court, rejected the evidence of D1 and that of the 1st applicant. The judge found that the flat had been used for the production of infringing compact discs. On the evidence, the judge concluded that the only reasonable inference was that D1 and the applicants were producing infringing copies of compact discs, the subject matters of the 1st and 2nd charges in the flat. They were therefore in possession of the infringing copies and the equipments.

21. Apart from assisting the applicants in making the infringing copies, D1 also acted as the delivery person in respect of the illicit goods.

22. The judge found the ingredients of the charges proved and he convicted D1 and the applicants of the charges.

The Sentences

23. In respect of the 1st, 2nd, 3rd and 6th charges, D1 and the applicants were each sentenced to the respective terms of 1 year, 1 year, 2 years 6 months and 2 years 6 months imprisonment.

24. The 1st applicant was sentenced to 2 months imprisonment in respect of the 4th charge and the 2nd applicant was sentenced to 4 months imprisonment in respect of the 5th charge.

25. The sentences were ordered to run concurrently.

The Applications

26. The 2nd applicant originally seeks leave to appeal against both conviction and sentence in respect of all the charges even though she had pleaded guilty to the 5th charge.

27. The 1st applicant also seeks leave to appeal against sentence in respect of all the charges.

28. We are told at the outset of the hearing that the 2nd applicant would not pursue her application relating to conviction on the 5th charge and sentence on the 1st, 2nd and 5th charges. The 1st applicant also decided not to pursue his application relating to sentence on 1st, 2nd and 4th charges. Those applications are therefore dismissed.

29. Mr. Francis Burkett, instructed by the Legal Aid Department pursues the applications in respect of conviction against the 2nd applicant on the 1st, 2nd, 3rd and 6th charges. In respect of sentence against both applicants, only those applications relating to the 3rd and 6th charges are pursued

The Grounds

30. In respect of conviction, the only ground advanced on behalf of the 2nd applicant is that her mere presence in the flat was insufficient to enable the court to draw the inference that she was in the flat making the infringing copies. A fortiori her mere presence in the flat was insufficient to lead to the conclusion that she was in possession of the 272 infringing copies found in the plastic bags carried by D1 outside the building.

31. Mr. Burkett also suggests that the applicants were "merely workers" and the starting point of 30 months was too high, particularly when the number of infringing copies was relatively small.

Convictions

32. It is of course well established that an inference of guilt can only be drawn against an accused if it is the only reasonable inference to be drawn. Lord Diplock in the often-cited decision in R v Kwan Ping-Bong [1979] HKLR 1 said at p.5:

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling-one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

33. In deciding if an inference of guilt can be drawn, the court must look at all the circumstances of the case.

34. In The Queen v To Luen-sum [1995] 1 HKCLR 318, Bokhary JA (as he then was) made the following observation at p. 323:

"When it comes to looking at all the circumstances of a case and considering whether an inference of guilt is the only reasonable inference to draw from the primary facts on which the prosecution relies and of which the tribunal of fact is sure, it is true that the piling of layer upon layer of unconvincing material cannot result in proof of guilt beyond reasonable doubt. But that is not to say that items of fact insufficient each in itself for the purpose of convicting may not, when taken together, form a body of fact upon which it would be proper to infer guilt and convict accordingly."

35. It is not a case where only one of the persons present could be guilty of the charge. We are concerned with a "factory" producing infringing copies in which everyone present could assist in the process.

36. It must be borne in mind that the 2nd applicant must have been in the flat for a long time. The prosecution evidence suggests that she was in the flat at least since the evening on 19 October 2001. The 1st applicant said she went there on 18 October 2001 and there was evidence that her luggage was also there.

37. There was hardly any furniture in the flat. The only items were a mattress, a TV set and a fridge.

38. The infringing copies and the equipments were placed quite openly in the flat as shown in the photographs. The judge was justified in concluding as he did that there was production of infringing CD-ROM discs in the flat. Such production must have taken place between 11 p.m. on 19 October 2001 and 4 a.m. on 20 October 2001.

39. We must not ignore that the 2nd applicant elected not to give evidence. She also called no witness. The evidence of her husband, the 1st applicant was also rejected.

40. An accused of course is not obliged to give evidence. But the fact that an accused elects not to give evidence would strengthen the adverse inference to be drawn against him on the prosecution evidence. (see the judgment of Lord Hoffmann NPJ in Li Defan & Fan Ying Chao v HKSAR FACC No. 5 of 2001 at para. 32.)

41. In our views, on the prosecution evidence and in the absence of an acceptable explanation from the 2nd applicant, the judge was entitled to infer that she was also engaging in the production of infringing copies of copyright works in the flat at the material time. The judge was also entitled to infer that the 272 infringing copies found from D1 were manufactured in the flat for which the 2nd applicant was also responsible.

42. The 2nd applicant was rightly convicted of all the charges. There is nothing unsafe or unsatisfactory about the conviction.

Sentence

43. The applicants may well be "mere workers" and not the bosses. But illicit business of copyright infringement cannot exist without the assistance of "mere workers" such as the applicants.

44. Copyright infringement is a serious offence in Hong Kong and whoever perpetrates such offence can expect no mercy from the court. It is only with harsh sentence that perhaps people would be deterred and the reputation of Hong Kong not damaged.

45. The number of infringing copies was not small and but for the intervention by the Customs Officers, there is no doubt that the business would have continued with the existence of the equipments and the presence of blank compact discs.

46. The applicants were convicted each of 5 charges. Apart from the copyright infringement offences, there was the further charge of breach of condition of stay.

47. Looking at the facts of the case and the backgrounds of the applicants, the total sentence of 2 years and 6 months imprisonment is neither wrong in principle nor manifestly excessive. There is no valid basis to interfere with such sentence.

Conclusion

48. The applications for leave to appeal against both conviction and sentence by the 2nd applicant are dismissed.

49. The application for leave to appeal against sentence by the 1st applicant is also dismissed.