HKSAR v. YU KIN FAI

HCMA369/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.369 OF 1999

(ON APPEAL FROM KTCC 2474 OF 1998)

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J U D G M E N T

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1. The Appellant appeals out of time against a conviction by a Magistrate of the offences of possession for the purpose of trade or business of infringing copies of copyright works with a view to committing an act which infringes the copyright without the licence of the copyright owner, and a 2nd charge of possession for sale of goods to which a forged trade mark was applied. He had been jointly charged with another Defendant and the two of them were jointly tried by the Magistrate.

2. The other Defendant appealed against his conviction and his appeal against conviction was allowed by Deputy Judge Li on 7 September 1999. The basis of the appeal being allowed was that because of procedural irregularities, Deputy Judge Li concluded that that Defendant did not have a fair trial and therefore the conviction had to be quashed.

3. This Appellant now seeks to have his conviction quashed on the same ground and Mr Lee, acting for him, has submitted that the doctrine of stare decisis is applicable to the extent that I am bound by Deputy Judge Li's judgment. The basis for that submission was that Deputy Judge Li and I were sitting in parallel jurisdictions of the High Court and therefore that doctrine should apply to our Courts.

4. It was held in Secretary for Justice v. Wong Sau-fong, Criminal Appeal No.55 of 1997, that the Court of Criminal Appeal if it were assembled as a full Court for the purpose of reconsidering a question involving the liberty of the subject, then it might reconsider an earlier decision of the Court with a view to seeing whether that person had been properly convicted. Since that particular Court which decided that appeal was not a Full Court convened for the purpose of considering an earlier decision, because of the principles of stare decisis, that Court of Appeal would be bound by the earlier decision.

5. Mr DiFazio, for the prosecution, has submitted that he was not conceding that the doctrine of stare decisis necessarily applied to this Court, nor was he conceding that the judgment of Deputy Judge Li was necessarily correct. However, and in my view quite properly, he conceded that if this Appellant's appeal should be dismissed, then it might justifiably give this Appellant a sense of grievance and it was for that reason that the prosecution was not opposing the appeal, nor were they seeking a result different from the result obtained by the other Defendant in his appeal before Deputy Judge Li.

6. I have not had the benefit of a fuller argument on the doctrine of stare decisis in so far as the Court of First Instance is concerned, but I did point out to Mr DiFazio that inasmuch as I am not sitting in an appellate jurisdiction, in so far as Deputy Judge Li is concerned, I could well see difficulties in myself in effect ruling in a different way or in an opposite way to Deputy Judge Li which would have the effect of reversing his decision.

7. However, be that as it may, I agree with the prosecution that if this Appellant's appeal should be dismissed, then it would justifiably give him a sense of grievance. Without going into the procedural irregularities which was the basis of Deputy Judge Li allowing the other Defendant's appeal, I will allow this Appellant's appeal and quash the conviction and sentence.