HKSAR v. CHUI CHI SHING

HCMA25/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.25 OF 2001

(ON APPEAL FROM KTCC 3041 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 27 November 2000 of possession for the purpose of trade or business of infringing copies of copyright works with a view to committing an act infringing the copyright without the licence of the copyright owner. He was, on 8 December 2000, sentenced to four months' imprisonment. He now appeals against the conviction.

2. The evidence before the magistrate was that on 9 March 2000, a Customs & Excise officer saw three men coming out of premises in Kwun Tong, each pushing a trolley loaded with cardboard cartons. He followed them into the lift and went down with them to the ground floor. During that journey, he saw that the man who became the 1st accused at the trial was transporting a broken carton and he could see suspected counterfeit discs inside that carton. The cartons, which were on the top of the trolleys, were sealed. He arrived at the car park on the ground floor and he saw there was a lorry there and saw the 1st accused loading cartons onto the lorry.

3. A second Customs officer also observed the three men, who were the 1st, 2nd and 3rd accused at the trial, coming out of the lift each pushing a trolley loaded with cartons. He saw them placed by the 1st and 3rd accused onto the rear tailboard of the lorry and the 2nd accused, who is the appellant before me, put the cartons inside the lorry. He stopped the lorry as it was leaving and arrested the appellant.

4. The magistrate, in his findings, considered carefully whether or not the break in the carton was sufficient for the appellant to have known the contents of that carton and held that it did not. It was agreed, pursuant to section 65C of the Criminal Procedure Ordinance, that there were a considerable number of video compact discs, music video compact discs and music compact discs in the cartons and that they were all infringing copies of copyright works.

5. The appellant gave evidence saying that he was a casual delivery worker and that he came to the building where he was found at 10 a.m. on 9 March to assist in the transport of goods from premises in the building to the ground floor and onto a lorry. He further said that he did not get on board the lorry and had not been paid at the time the lorry started to leave. He was to meet the lorry, he said, in Tsuen Wan to help with the delivery.

6. The magistrate found, firstly, that the contents of the cardboard box were the infringing copies. He secondly found that the 2nd accused was in physical possession of those boxes or at least some of them during the period when he transported them from the premises down to the lorry. He found that the appellant knew he was in possession of those cartons. He then looked to what he found to be lies in the evidence of the appellant and in what he told the police in his statement, which were admitted to be voluntary. These lies he found supported the evidence for the prosecution and led him to the inference that the appellant knew the contents of the cartons and knew that they were infringing works.

7. The first ground of appeal was that the magistrate's finding of disbelief of the appellant's evidence was speculative, fanciful or in any case not beyond reasonable doubt.

8. The second ground was that there was little or no cross-examination of the appellant making it plain his evidence was not accepted and in what respects it was not accepted.

9. The basis of these two grounds of appeal was that the magistrate had insufficient material from the evidence of the prosecution and from the examination-in-chief and cross-examination of the appellant to form the view that the appellant was lying. Mr Coghlan for the appellant has taking me through a number of authorities which are accepted by myself and by the respondent to this appeal as showing the entitlement of a judicial officer to intervene so as to make matters clear in order to arrive at a proper determination. Each of these cases, Mr Coghlan concedes, involve a consideration of to what degree intervention is proper. None of the cases considered the point made by Mr Coghlan that a magistrate has a duty to intervene in respect of a represented Accused to fully bring out the evidence so as to enable him to make a proper assessment as to whether the appellant was telling the truth. To assist the parties, I ordered a transcript of the evidence of the appellant at trial and I have considered that transcript. I cannot agree with Mr Coghlan that the magistrate need or ought to have examined in greater detail the appellant so as to more firmly establish whether or not he was lying to court. Although the cross-examination by the prosecution at trial was not particularly searching, the magistrate was entitled to look at what was before him and come to a conclusion as to whether or not he believed the appellant. He concluded that he did not believe him.

10. Further, the magistrate has set out in detail those matters upon which he disbelieved the appellant and his reason for doing so. I cannot fault the magistrate in his approach to the credit of the appellant.

11. In his third ground of appeal, Mr Coghlan argues that the conviction of the appellant was inconsistent with the acquittal of the 3rd accused in the trial. Both of the accused were casual workers who were employed to help the 1st accused to load the lorry. There were many similarities between their positions but the difference in the findings of the magistrate was he found the appellant had lied about his involvement whereas he found that the 3rd accused had not. The magistrate was entitled to make findings as to the credit of the appellant and I am satisfied on this basis, there is no inconsistency between the verdicts.

12. Part way through the appeal, Mr Coghlan sought to argue a fourth ground of appeal, that is that the magistrate erred in holding that if the appellant was lying, these lies could themselves prove guilt. He said in his findings this:

"With regard to D2, I found he was lying in his evidence and I was satisfied beyond reasonable doubt that he was not lying for innocent reasons, to bolster a true defence or for panic or to conceal disgraceful conduct or to protect someone else, but he was lying to cover up the truth of what had really happened on that day and of his participation in that operation. I found that I could draw the irresistible inference from all the evidence that he knew exactly what was inside the cartons at the time he was moving them."

13. From this, Mr Coghlan suggests that the lies that the magistrate found had been told by the appellant were the sole evidence upon which he convicted the appellant. This is not so. The evidence before the magistrate was that the appellant was in physical possession of cartons which were subsequently found to contain copyright infringing material. From that physical possession of the cartons an inference can be drawn that the accused knew the contents and that the contents were copyright infringing material. There was a competing inference of lack of knowledge and with nothing further the magistrate would have had to draw that inference in favour of the appellant. However by finding the appellant had lied about the circumstances of his employment and his connection with the cartons and having found in accordance with the directions in R. v. Lucas [1981] 1 QB 720 adopted in HKSAR v. Mo Shiu-shing [1999] 2 HKLRD 155 that the lies were deliberate, that they related to a material issue and that the motive for the lies was a realisation of guilt and a fear of the truth he was entitled to rely upon that to support the evidence of the prosecution to a degree that the only reasonable inference he could draw from the whole of the evidence was the appellant had knowledge of the contents of the boxes.

14. Mr Tam for the respondent argues that the fourth limb of Lucas that is that the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated has fallen away now that the necessity for corroboration of an accomplice has been removed by statute. It is to be noted in HKSAR v. Mo Shiu-shing that the direction by the trial judge in that case did not contain that fourth limb. The Court of Appeal, nonetheless, held that direction to be a fair full and proper direction.

15. I am satisfied that the magistrate did not need to look for independent evidence and was entitled to rely upon the lies of the appellant in all the circumstances to support his finding of the inference that the appellant knew the contents of the cartons. This ground of appeal must fail and the appeal against conviction is dismissed.