HKSAR v. LI SIU HING

HCMA269/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.269 OF 1999

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REASONS FOR JUDGMENT

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1. After his trial before a Magistrate sitting in the Eastern Magistracy, the Appellant Li Siu Hing was convicted of three charges of Possession for the Purpose of Trade or Business of Infringing Copies of Literary Works in which Copyright Subsisted, contrary to s.5(1) of the Copyright Ordinance, Cap.39. On each count, he was sentenced to four months' imprisonment and the sentences were to run concurrently. He now appeals against his conviction.

2. The prosecution evidence was that a raid was conducted at a shop at 51B, Ground Floor, Park Lane Shopping Centre, King's Road, North Point on 20 January 1997. During the raid, Customs Officers saw the door of the shop opened but there was no one inside the shop. The Officers subsequently seized the offending articles forming the subject matter of the three charges from the shop premises.

3. On 5 August 1997, some six months after the raid, the Appellant approached the Custom Office and produced a business registration of one Choi Lung Laser Disc Company which has the same address as the shop raided earlier in January. The Appellant was then interviewed by a Customs Officer and a record of interview was taken. The record of interview was not produced at the trial. It would be useful to note here that the date of the Business Registration was 27 January 1997, which was seven days after the raid. There is no evidence that Customs and Excise Officers had inspected or raided the premises at any time before 20 January.

4. In his testimony at the trial, the Appellant told the learned Magistrate that he did sign on the application for business registration but however, he denied possession of the infringing articles. He also told the Court that he had not engaged in the trading of those articles on the day of the raid.

5. In the learned Magistrate's very brief Statement of Findings which consisted only of five short paragraphs, he stated his reason for convicting the Appellant as : firstly, he did not believe the Appellant's account that he was not engaged in the trading of the infringing articles and that even though the Appellant did not own the infringing items, he was nevertheless in possession of them for the purpose of trade.

6. At the appeal, it was contended on behalf of the Appellant that there was no evidence based upon which the learned Magistrate could have found that the Appellant was in possession of the infringing articles. From his very brief reasons in the Statement of Findings, it appeared to me that the learned Magistrate had not addressed himself at all to the issue of possession. The Magistrate relied on the fact that the Appellant's name appeared on the Business Registration and went on to infer from it that the Appellant must be the proprietor of the business and therefore he must have been in possession of the items seized. This line of reasoning must be flawed. The fact remains, the Appellant's explanations aside, at the time of the police raid on 20 January, the Appellant was not at the shop premises and no one was arrested. The Appellant only applied for the Business Registration some seven days later. It is readily apparent that there could be persons other than the Appellant who were in possession of the infringing articles at the time of the raid. The Magistrate's inference was, therefore, not the only reasonable conclusion that was open to the learned Magistrate.

7. Further, there is no evidence before the Magistrate to suggest that the Appellant had knowledge, on the date of the raid, that the compact disc were infringing articles. The learned Magistrate had failed to address himself on the two crucial issues of possession and knowledge. This failure had rendered the convictions both unsafe and unsatisfactory.

8. This appeal must be allowed and the sentences be set aside.