HKSAR v. TSANG CHI HUNG

CACC 440/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 440 OF 2002

(ON APPEAL FROM DCCC 363 OF 2002)

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J U D G M E N T

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Ma JA (giving the judgment of the Court):

Introduction

1. On 23 August 2002, the Applicant was convicted after trial in the District Court before Deputy Judge Jenkins of the following charges, all of which were said to have taken place on 30 March 2001:-

(1) Possession for the purpose of trade or business of infringing copies of copyright work, being some 417 CD-ROMs and 32 image files with a view to committing any act infringing the copyright, contrary to sections 118(1) and 119(1) of the Copyright Ordinance, Cap. 528;

(2) Possession of an article, namely, a personal computer connecting to 8 CD-writers, knowing or having reason to believe that it was used to make infringing copies of a copyright work for sale or hire or for use for the purposes of trade or business, contrary to sections 118(8) and 119(2) of the Copyright Ordinance;

(3) Possession of a dangerous drug, namely "ice", contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134;

(4) Possession for the purpose of trade or business of infringing copies of copyright work, being 3,428 video compact discs, 14 music compact discs, 3 music video compact discs and 3,273 CD-ROMs with a view to committing any act infringing the copyright, again contrary to sections 118(1) and 119(1) of the Copyright Ordinance.

The Applicant was sentenced to, respectively for these offences: 2 years, 2 years, 3 months and 3 years, all of which were to be served concurrently.

2. By a Notice of Application for leave to appeal, the Applicant initially sought leave to appeal against both conviction and sentence. The appeal against sentence was abandoned by a Notice of Abandonment dated 8 November 2002 and this appeal has therefore been dismissed.

The reasons for the verdicts

3. In the course of arriving at his decision on the various charges, the Judge found the following facts:-

(1) On 30 March 2001, Customs and Excise Department officers executed a search warrant on a flat being Flat D and the rooftop, 11th Floor, Kiu Fai Building, 2-8 Kiu Yam Street, Shamshuipo, Kowloon ("the Premises").

(2) There, they found the items detailed in the 4 charges I have set out above. The items listed in the fourth of the charges were located on the rooftop part of the Premises. This rooftop (or a part of it) was enclosed.

(3) The Premises were let to the Applicant under a tenancy agreement dated 23 August 2000. The duration of the tenancy was two years from 10 September 2000, so that at the time of the search by the Customs and Excise Department officers on 30 March 2001, this tenancy was still extant. The tenancy agreement contained the usual clause prohibiting any assignment or subletting without the landlord's consent. The landlord gave evidence to say that he did not give any consent for subletting the Premises.

(4) The Applicant was in the Premises alone at the time the search was conducted and the said items found. He had nothing to say at the time of his arrest.

(5) From looking at photographs produced at the trial, the Judge said the Premises could be used for residential purposes.

(6) A woman was seen leaving the Premises immediately before the search. Upon arrest, she gave as her address the Premises. Later, in the presence of a lawyer, she said she lived elsewhere. This woman (probably the Applicant's girlfriend, we might add) was not charged. Neither did she give evidence at trial.

(7) The Applicant was not licensed by the relevant copyright owners in relation to the charges under the Copyright Ordinance.

4. The Judge also dealt with the testimony that was given on behalf of the Applicant. One Ms Koo Siu Fong, an estate agent with whom the Applicant dealt in renting the Premises, gave evidence saying that she remembered the Applicant "telling her that he had wanted the flat for his girlfriend to live in". The learned Judge expressly said that in some ways Ms Koo was not a very satisfactory witness but concluded that even if the Applicant had told Ms Koo he wanted the Premises for his girlfriend (and this evidence was admissible), it would not have prevented him from making use of it for his own purposes as well. We should perhaps just add it does not appear that it was Ms Koo's evidence in any event that the Applicant wanted the Premises so that his girlfriend would live there and use these premises exclusively. After all he was at the Premises on the day of the search and he was the tenant of the Premises.

5. The Applicant's mother also gave evidence. Her testimony was to the effect that the Applicant lived with her, her husband and his sister at their home at Po Lo Che near Sai Kung. She said that the Applicant would have dinner there every evening but once a week or so, he would not come home at night (presumably to have dinner). The Judge was of the view that even if the Applicant's girlfriend did use the Premises, it would not prevent him using it during the daytime in the way alleged by the prosecution.

6. The Applicant did not give evidence at the trial. The Judge recognized this to be the Applicant's right. He said this at paragraph 12 of the Reasons for the verdicts:

"12. The Defendant elected not to give evidence and again this does not add anything to the prosecution case but it does mean that there is no explanation by him to explain his presence in the premises at the time in question. I remind myself though that the defendant does not have to prove anything and it is for the prosecution to prove the defendant's guilt on each of the charges."

7. The Judge recognized that the only evidence linking the Applicant to the Premises was the fact that he was the tenant and that he was present there on the day in question. The Applicant's case at trial was that this was not enough. The learned Judge said this:

"14. Therefore, it is suggested that not only is there no evidence connecting the defendant with the flat apart that is from him being named as the tenant on the tenancy agreement, but there is nothing at all to connect him with the compact discs, computer equipment and the drugs found in the flat. I accept that the defendant's mere presence in the flat does not automatically mean that he knew of the existence of the drugs or knew that there were infringing copies of compact discs there. Neither does it mean that he knew that one of the computers was used to make infringing copies of compact discs. But nonetheless I do find that the only inference that can possibly be drawn from the circumstances is not only that the defendant knew of the presence in the flat of the computer equipment and the compact discs and the drugs, he knew also that he was in possession of these articles and he knew what they were.

15. I am satisfied that the prosecution have proved that the defendant was in possession of the various compact discs which were and which he knew to be infringing copies of copyright works."

8. Thus the learned Judge convicted the Applicant on all four charges.

The grounds of appeal

9. In this application for leave to appeal, the following grounds are relied on:-

(1) The Judge was wrong to infer possession or to find possession on the Applicant's part when the only evidence of this was the fact that the Applicant was the tenant under a tenancy agreement of the Premises and was present there on 30 March 2001.

(2) The Judge failed to take into account the Applicant's clear record.

(3) In finding that the Applicant was not licensed by the relevant copyright owners, the Judge failed to take into account the possibility that the woman seen leaving the Premises just before the search on 30 March 2001, may have been the person actually or jointly in possession of the relevant items found inside the Premises, or may have had a valid licence in respect of the same. This ground was abandoned by Mr Oderberg this morning.

(4) The Judge did not take into account, either sufficiently or at all, the failure of the prosecution to call the woman or its failure to adduce any evidence going to the issue of possession other than the two facts we have already referred to. In addition, the Judge did not take into account the relevant authorities relied on by the Applicant.

(5) The Judge erred in concluding that the Applicant could have committed the offences in the light of the evidence from his mother that he resided with her.

(6) In the circumstances, the convictions were unsafe and unsatisfactory.

10. In our view, these grounds have no substance. We deal with them in turn.

11. As to ground 1:-

(1) Much criticism was directed at the Judge drawing the inference that the Applicant was in possession solely from the fact that he was the tenant of the Premises and that he was present on the day in question when the search took place.

(2) The Judge had found that "from the circumstances", the only inference that could be drawn was not only did the Applicant know of the presence in the Premises of the items in question (including the drugs), but that he knew what they were and that they were in his possession. We fail to see how the Judge could be faulted here at all.

(3) The conclusion that the Judge reached was entirely justified. The simple fact is that the lawful tenant of the Premises was the Applicant and he was there at the time the items were discovered. There was no evidence of any subletting and indeed the evidence from the landlord that no consent had been given for any subletting, suggests otherwise. The evidence from Ms Koo, the estate agent, even if believed and even if admissible, took the matter no further. The mere fact that the Applicant rented the Premises so that his girlfriend could live there does not exclude the fact that he also used it. We have already drawn attention to the fact that Ms Koo did not say that the Premises would be used exclusively by the girlfriend. Similarly, the mother's evidence did not exclude the fact that the Applicant used the Premises either. His living with his family on a regular basis did not mean that he did not use the Premises and was not in control of it. Many people rent premises without necessarily living there as such.

(4) No doubt it was open to the Applicant to explain his presence in the Premises or (for the purposes of section 118(3) of the Copyright Ordinance) to say that he did not know and had no reason to believe that the infringing items found were in fact infringements of copyright. However, as he was fully entitled to do, he chose not to give evidence.

(5) We have already set out in full what the Judge said in relation to the Applicant's election not to give evidence. In particular, after reminding himself that the fact the Applicant did not give evidence added nothing to the prosecution's case, the learned Judge said:

"but it does mean that there is no explanation by him to explain his presence in the premises at the time in question"

(6) In our view, this comes close to the standard direction that should be given by a judge to a jury in circumstances where an accused has elected not to call evidence. A part of this standard direction is,

"On the other hand, it means that there is no evidence from the Defendant to undermine, contradict or explain the evidence put before you by the prosecution."

(7) This standard direction was expressly approved by the Court of Final Appeal in Li Defan & Anor. v. HKSAR [2002] 1 HKLRD 527. In that case, it was said that a judge sitting alone need not formally direct himself in this way, for it is assumed that he knows the law. Where, as in the present case, the Judge has actually spelt out his understanding of the law, the matter is beyond doubt in our view.

(8) Before leaving Li Defan & Anor. v. HKSAR, we would just reiterate the point made in that case by Bokhary PJ that the sentence in the standard direction set out above, although no doubt it is against the interests of an accused, nevertheless dispels any misconception that common sense does not apply in the evaluation of evidence:- see paragraph 4 at page 530. And the evidentiary role of an accused electing not to give evidence is that in some circumstances, this will go to how the decision-maker (whether the jury or single judge) evaluates the other evidence in the case or draws inferences arising therefrom:- see Li Defan at paragraphs 27-28 at pages 537-538 per Lord Hoffmann, referring to the decision of the High Court of Australia in Weissensteiner v. R (1993) 178 CLR 217, at 227-229.

(9) Mr Oderberg, in his written submissions, relies on the cases of HKSAR v. Lai Hon-kwan (unreported); R v. Tsang Kam-chiu (unreported) and Cheung Yuk-san v. R [1969] HKLR 27, in relation to the question of possession and control. We have not found these cases helpful beyond the general requirement that possession needs to be proved by the prosecution beyond a reasonable doubt, encompassing as it does aspects of knowledge, control or custody. The outcome of these cases turned on their individual facts. For example, in HKSAR v. Lai Hon-kwan, Stuart-Moore VP said at paragraph 37 that "the circumstances" of the accused's involvement was insufficient to establish control. It is "the circumstances" that are always important in every case and in the present case there is no doubt that the Judge had taken all the relevant circumstances into consideration. Indeed he had set these out in his Reasons.

(10) We see no flaw in the learned Judge's approach. This ground therefore fails.

12. As to the second ground:

(1) The learned Judge did not mention the fact that the Applicant had a clear record. However, this fact was mentioned to him during the defence's closing. Mr Oderberg accepts this. The Judge therefore must have been aware of this fact.

(2) Mr Zervos drew our attention in his written submissions to R v. Fok Tin-yau (unreported), 26 May 1995, Court of Appeal, where Power VP said at page 7 that whether or not a direction needed to be given in relation to an accused's good character depended entirely on the circumstances of each case. It may be particularly relevant to do so where, say, the credibility of the accused is in issue. Where this factor is relevant, in the case of a judge sitting alone, Power VP said this at page 8:

"As Penlington JA made it clear in R v. WONG Chi-wei (1994) 1 HKCLR 94, CHAN Wu-nam's case is not authority for the proposition that in all cases where credibility is in issue, the Judge must set out the manner in which he considered the accused's good character in deciding that issue. Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved."

(3) In the present case, even if it was relevant to consider the Applicant's clear record, the learned Judge was aware of it and must, in our view, be taken to have duly considered it.

(4) This ground fails.

13. The third ground was expressly abandoned by Mr Oderberg and it is therefore not necessary to deal further with this aspect.

14. As to ground 4:

(1) This ground is upon analysis no different to the first ground. It is a refinement on the question whether the Judge was justified in reaching the conclusion on possession on the basis only of the Applicant being the tenant and his being present on the day the Premises were searched.

(2) It does not advance the matter much further by inquiring whether the prosecution's evidence could have been better. The fact remains that the woman was not called by either side, no evidence was adduced as to the presence of the Applicant's fingerprints, the Applicant did not have the keys to the Premises on his person (and these were not located) and there was nothing in the Premises that connected the Applicant to it.

(3) The learned Judge took all these into account to reach his decision on the basis of the evidence that was before him. We cannot see how he can be faulted.

(4) As for the submission that the learned Judge did not address the legal authorities on possession, there is no need in general for judges to deal with each and every authority cited to him by counsel. In his submissions before us, Mr Oderberg identified the main relevant authority as being HKSAR v. Lai Hon-kwan. The fact that this was referred to the learned Judge shows that he must have considered it. In any event, as seen above, this case together with the others are not particularly helpful in our view.

(5) This ground also fails.

15. As to ground 5:

(1) We have already dealt with the evidence from the Applicant's mother and what the learned Judge said in relation to that. He cannot be faulted in any way. As stated above, the fact that the Applicant lived at home and ate there regularly did not mean he did not use the Premises or was not in control of it.

(2) This ground likewise fails.

Outcome

16. For the above reasons, this application is dismissed. The Applicant's convictions were not unsafe or unsatisfactory.