HKSAR v. CHEUNG HOI KIM AND ANOTHER

CACC 630/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 630 OF 1999

(ON APPEAL FROM DCCC NO. 407 OF 1999)

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J U D G M E N T

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Wong JA (delivering the judgment of the Court):

1. Cheung Hoi Kim, the 1st Applicant, who was D2 at the trial, was convicted before Judge Wilson in the District Court of two charges 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 contrary to s. 188(1)(d) of Cap. 528 (Charges 5 and 6). Following a number of recent decisions of this Court which we need not recite, Counsel for the Respondent concedes, as he must, that as both charges were summary offences they could not be validly transferred to and tried in the District Court. Consequently, the convictions are nullities and must be set aside and we are invited to do so. In the circumstances, the convictions are quashed and the sentence set aside.

2. There is an application for costs by Mr Marash S C who represented the Applicant before us. He told us that the reason for his presence in Court this morning was because he had been retained to represent the Applicant before the Applicant was notified by the Department of Justice of the error. In the meantime he had been giving advice to the Applicant on the chances of success of an appeal against conviction. We have given this application very careful consideration but not without anxiety. The law is by now very clear because of the decisions given by this Court in recent months. There is no need for counsel, especially Senior Counsel, to appear before us on a matter of mere formality. It would be perfectly in order and adequate for someone from the solicitors firm or a very junior counsel to come to court to take the judgment. In the circumstances, we are only prepared to make a limited costs order. We order that the Respondent pay the costs of the 1st Applicant. This order is limited to the solicitor's reasonable costs, fees for counsel for the advice and fees for counsel for making the application for bail. As for today, we award costs in a sum not to exceed $5,000.

3. The case of Wong Ho-pong, the 2nd Applicant who was D3 at the trial, stands however, on a different footing. He was tried and convicted before Judge Wilson of one offence under s. 188(1)(d) of Cap. 528 (Charge 5) and one charge of possession of an article, specifically designed for making copies of a particular copyright work which article is used or intended to be used to make infringing copies of the works for sale or hire or for use for the purpose of trade or business, contrary to s. 118(4)(d) of the same ordinance (Charge 7). The latter charge is an offence triable on indictment and as such both charges were validly and properly transferred to the District Court and there is jurisdiction for that Court to try these two charges. There is no dispute in so far as the question of jurisdiction is concerned. The 2nd Applicant now applies for leave to appeal against his convictions.

4. The facts relied upon by the prosecution and found by the Judge are briefly these. The judge obviously rejected the evidence of the 2nd Applicant and his witnesses. On 23 June 1998, Customs and Excise officers conducted a raid on a factory which manufactured pirated CD-ROM in the China Aerospace Centre at 143, Hoi Bun Road, Kwun Tong. They arrived at the building and went into the car park at 4:05 p.m. They saw the two Applicants together with a dark red private car, registration No. HB 1807. In the passenger seat was a woman called Tsang Choi-ha. The rear door of the car was open. The two Applicants were moving two cartons of what transpired to be part of the offending articles into the car. There were already two cartons in the car. Besides the two cartons in the car and the two cartons which the two Applicants were trying to put into the car, there were still six cartons on the floor. Inside a plastic bag in the car, there were five stampers and two of these five stampers formed the subject of Charge 7. The officers revealed their identity and opened the boxes which were found to contain computer discs. One of the officers, PW1, spoke to the 2nd Applicant and asked him what were inside the cartons. The 2nd Applicant uttered words to this effect "Give me a chance. This is my first time to transport the discs". The officer asked what discs were, he said they were pirated discs. The officers immediately cautioned him and in response the 2nd Applicant said this "Give me a chance. This is my first time to transport the discs. All along I was just transporting 'Che pa' and selling 'sam chai' ". The English translation of 'Che pa' is 'master discs' or stampers and 'sam chai' means blue movies. The reply by the 2nd Applicant to this caution was later recorded by the officer his notebook at about 4:40 p.m. inside the red car in the car park.

5. The admissibility of both the verbal admissions and the entry in the notebook was challenged and the judge determined this issue by holding a voir dire. In his ruling on the admissibility, the judge noted but rejected that some rather faint suggestions by the 2nd Applicant of threat and violence, a raised hand, a grasping of the collar and various other inducements. He concluded that he was satisfied beyond reasonable doubt that the notebook entry and the oral admissions had been proved to be voluntary and admissible.

6. There are a total of four grounds of appeal as contained in the Amended Perfected Grounds of Appeal. The first two complain of the Judge's failure to consider the evidence judicially and fairly and the other one that the judge failed to make specific findings as to whether the admissions were in fact made. There is no need for us to deal with these grounds in any detail. As the judge was satisfied beyond reasonable doubt that the entries were voluntary this must mean he was also satisfied that they were made. It is a well established principle that a judge when making a ruling in a voir dire is not required to give any detail or make any specific findings of fact. All he is obliged to do is to state clearly that the admissions or statements were voluntary and admissible. There is no merit whatsoever in these grounds of appeal.

7. Grounds 3 and 4 deal with the question of knowledge and the lack of evidence to prove it. Again, there is no substance in any of them. As Mr Oderberg very properly conceded that once the judge accepted the admissions as evidence the prosecution would have proved their case to the requisite standard. The judge was perfectly entitled to draw the inference of both of possession and knowledge. On the evidence before him, he could not have done otherwise.

8. We are satisfied that there is overwhelming evidence to support the convictions on the two charges. The convictions are in no way unsafe or unsatisfactory and do not cause us any anxiety. Accordingly, the application must be dismissed.