XCHRX HKSAR v. TSE MUI CHUN

CACC 557/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 557 OF 2001

(ON APPEAL FROM DCCC NO. 556 OF 2001)

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J U D G M E N T

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1. The defendant was convicted on 29 November 2001 after trial of two offences under the Copyright Ordinance : making infringing copies of copyright works without licence and possession of an article designed for making infringing copies of a copyright work. She was sentenced to 21 and 28 months' imprisonment respectfully on the two charges. The sentences are to run concurrently. She now applies for bail pending appeal.

2. Bail pending appeal would be granted generally in two situations :

First, the sentence would be substantially served when the appeal is heard. Second, it appears, prima facie, that the appeal is likely to be successful.

3. Both grounds are relied upon in this application. I will deal with the second ground first. It is submitted that the prosecution had not proved the ownership of the copyright. Specifically, there are seven copyright works relating to Walt Disney. One is in fact no longer protected by copyright because of the lapse of time and there are serious disputes, even based on the prosecution's evidence, on the true ownership of the three other works.

4. The lapsed copyright work is not in issue. The trial judge had recognised this fact. As to the disputed works, even for the purpose of argument, ownership had not been established, there are still three works whose copyright are not in doubt. There is also no challenge to the other copyright work by Sony. Infringing articles of these four copyright works form the bulk of the subject matter of the offences.

5. Then it is submitted that there is no evidence proving that the defendant had made the infringing copies without licence from the owners. The defendant did not give evidence. It is submitted that the evidence on the lack of licence is in the nature of hearsay evidence.

6. S. 118(1)(a) of the Copyright Ordinance provides that a person commits an offence if he, without the licence of the copyright owner, makes for sale or hire an infringing copy of a copyright work.

7. The trial judge held that the burden in showing the absence of licence was on the prosecution. As the appeal is to be heard, I should refrain from expressing any final view which may be taken as affecting the appeal, but I have to say that, on the face of it, this section falls within the negative averment situation. As a matter of construction, the section prohibits the act, namely, the making of copies of a copyright work except under licence by the copyright owner : see R. v. Edwards [1975] Q.B. 27. This must be one of those cases in which the defendant can easily discharge the burden by proving she has the licence to make copies of the protected work : see R. v. Hunt [1987] A.C. 352.

8. I am not satisfied that there is an apparent high chance of success in the appeal.

9. As to the first ground, the sentence is 28 months. Given full remission the sentence would be about 18 months. The defendant was recently convicted in November 2001. Even allowing time for the transcript of the trial to be obtained, it cannot be said that the risks of the defendant serving a substantial part of the sentence is so high that bail should now be granted.

10. I will refuse the application.