HKSAR v. LEUNG SIU KIN

HCMA 611/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 611OF 2001

(ON APPEAL FROM NKCC 1041/2001)

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant by Mr Boey Chung on 28 May 2001 of an offence of "Possession for the purpose of trade or business of infringing copies of copyright works, namely 1,054 Compact Disc Roms (TV games), with a view to selling them being an act infringing the copyright without the licence of the owner contrary to s.118(1)(d) and s.119(1) of the Copyright Ordinance Cap. 528." The appellant has been given leave to abandon his appeal against sentence.

2. The 3 grounds of appeal are all directed to the learned Magistrate's assessment of the evidence of PW1, Customs Officer 95138, the witness upon whose evidence the prosecution case on this charge depended. The 3 grounds of appeal all relate to what is said to be a discrepancy between the evidence of that witness, that he found a $20-note in the appellant's right front trouser pocket at the shopping arcade where the offence was alleged to have occurred and a Customs and Excise "Detention /Guard Form" which describes the property found on the defendant at the time of his arrest. An entry of "$700.00" has been altered to "$680.00". It is argued that the learned Magistrate erred in his analysis of the evidence regarding this form, that he failed adequately to identify or deal with the alleged discrepancy between the form and the evidence of PW1 and that the alleged discrepancy created a reasonable or lurking doubt.

3. The evidence for the prosecution came from two Customs Officers, Customs Officer 95138 (PW1) and Customs Officer 97219 (PW2). Insofar as the charge against which the appellant's appeals are concerned, the evidence was that PW1 had been standing outside Shop 167 at Federal Plaza in Castle Peak Road at around 3 p.m. The shop was selling video games and video game accessories. The appellant was seen inside the shop standing behind the glass counter facing 3 customers. PW1 heard the appellant telling the customers that the video games, the covers of which he was holding, were new games and that they should try them out. He then saw the appellant go to a nearby shop (Shop 164), open the roller gate of that shop and emerge holding one disc. The appellant returned to Shop 167 and handed the disc over to one of the 3 customers and received a banknote which he put into his right front trouser pocket. That customer left and then the appellant continued to talk to the other 2 customers about video games. The appellant then returned to Shop 164 and again rolled up the gate of that shop. PW1 followed him into the shop and saw him choosing a disc from the lowest drawer of a plastic cabinet, which was the only item of furniture in the shop. Amongst the discs in that cabinet were the 1,054 CD Rom games which are the subject of this charge and which it was admitted are unlicensed infringing copies of literary works in which copyright subsisted. After being arrested and cautioned, the appellant stated that it was none of his business, that his shop was Shop 167 and that he was not in charge of Shop 164. PW1 took the appellant back to Shop 167 where he says that he searched the appellant and found a $20-banknote on its own inside his right front trouser pocket. When PW2 arrived at Shop 167 shortly afterwards, PW1 said that he had given the $20-note to him. PW2 confirmed this evidence.

4. There was no evidence called by the appellant to contradict this evidence. He himself elected not to give evidence.

5. It was, however, suggested to PW1 in cross-examination that he had never seen the appellant go to Shop 164 to collect things, but that what had happened was that the officer had seen the appellant walking past Shop 164 and had pushed him inside. PW1 denied this suggestion. It was also suggested to PW1 that he had never seized the $20-note from the appellant at the shopping arcade but only later at the Customs & Excise Headquarters. The officer disagreed. PW2 also insisted in cross-examination that the $20.00 had been given to him by PW1 at the scene.

6. The finding of the $20-note in the right front trouser pocket of the appellant's trousers at the shopping arcade was obviously evidence relevant to the question of whether the appellant possessed the infringing discs in Shop 164 for the purpose of trade because the appellant had, according to PW1, been seen to fetch disc from that shop and return to Shop 167 and hand it to someone who appeared to be a customer in return for a banknote, which he put in the same pocket. There was evidence other than the finding of the banknote, from which the court could have inferred that the appellant was in possession of the discs in Shop 164 for trade or business, but that evidence also came from PW1. If doubt could be cast upon PW1's evidence regarding the finding of the banknote in the appellant's trouser pocket at the scene, then it would clearly cast doubt on other aspects of PW1's evidence.

7. What Mr Boyton in essence seeks to argue in this appeal is that there was an unresolved discrepancy between the Customs & Excise "Detention/Guard Form" in which the figure "$700.00" has been altered to "$680.00" and the evidence of PW1 as to the finding of the $20-note. He maintains that these matters are directly in conflict and that they are matters with which the Magistrate failed to deal. He said that in failing to do so, the verdict of the Magistrate is unsafe.

8. That a Magistrate has a duty to say how he has resolved significant inconsistencies and conflicts in his judgment is well established (see O'Connor J in Lam Kam Wing & Ho Ming Ying v. R., Cr. App. 607/1979, and Yang CJ in R. v. Yan Kam Ting [1989] 2 HKLR 673).

9. I am satisfied that in this case there was no conflicting testimony which required resolution.

10. In itself there is no conflict or inconsistency between a witness saying that he has found $20.00 in a particular pocket of a person at the scene of an offence and the Customs & Excise Form recording his property as being "$680.00", that figure having been altered from "$700.00".

11. What it might do is lay grounds for a speculative hypothesis that while $700.00 had been found on the prisoner in the Customs & Excise Department, the officer may have subsequently decided to pretend that $20.00 of that sum had been found on the prisoner earlier. But that is only one of a number of possible explanations for such an alteration. Counsel, having chosen not to explore the reason for the alteration with the witness, cannot now complain that a speculative possibility was a discrepancy or inconsistency with which the Magistrate failed to deal.

12. Mr Boyton relies upon a particular exchange with PW1 during cross-examination. The witness agreed that on the form "cash seized 700.00" had been altered to "680.00". He agreed that he had filled in the form.

13. Mr Boyton then said this:

"Q. That suggests to me that was an afterthought. That you seized the money and then corrected $700.00 to $680.00 at Customs & Excise Headquarters.

A. Correct."

14. As I understand him, Mr Boyton suggests that the witness, despite the fact that he had denied seizing the $20.00 at Customs & Excise Headquarters a few questions earlier, was agreeing to the proposition that the form suggested that he had seized the $20.00 at Customs & Excise Headquarters.

15. I do not accept that to be the case. Mr Boyton had uttered two sentences. Neither was on its face a question. The first was a statement of what the alteration on the form suggested to him, namely, that it was an "afterthought". Both the first and the second sentences left vague the nature of the so-called "afterthought" which the alteration suggested. The second sentence did not make clear what money Mr Boyton was referring to, still less whether the money, as well as the correction, was made at Customs & Excise Headquarters. The witness replied, "Correct." The Magistrate made the only safe assumption that he could make in view of the ambiguities in Mr Boyton's words, that the witness was simply agreeing that he made the alteration.

16. I am satisfied that at the close of the evidence, the state of the evidence was such that the Magistrate did not have to deal with the Customs & Excise form or the reason for the alteration. The Magistrate found both PW1 and PW2 to be truthful and reliable witnesses (see page 40 of the transcript). He found, as PW1 had testified, that only a $20-banknote was found in the appellant's right front trouser pocket at the scene. That was sufficient. The conviction was neither unsafe nor unsatisfactory.

17. I dismiss the appeal against the conviction.