MAGPUL (ASIA) LTD v. LEE YOW SING t/a 兵工廠

HCA 2139/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2139 OF 2008

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BETWEEN

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J U D G M E N T

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1.  In this matter the Plaintiff which is an established manufacturer of toy guns including replica military assault rifles is seeking summary judgment against the Plaintiff in terms of its summons dated 23 June this year which can be found at pages 1-10 of the documents bundle.

2.  Mr Lee the Defendant used to operate a shop at 112, Yen Chow Street, Sham Shui Po which sold these sort of products.

3.  In June 2008 it had come to the Plaintiff’s attention that items were being sold from those premises which might be infringing its copyright. In these circumstances it decided to send Mr Dominic Wong, whom it now employs but who at the time was one of its customers, to go to this shop and purchase certain items so as to provide evidence that infringing items which breached its copyright were being sold from there. Mr Wong has set out in two affirmations an account of his dealings with Mr Lee who he met there on the three occasions in July and September 2008.

4.  I need only summarise the course of their dealings. In July 2008 on the occasion of his first visit Mr Wong asked Mr Lee about an item which appeared in a photograph stuck on the cash till register in Mr Lee’s shop. In appearance it was identical to one of the Plaintiff’s products which is a CTR-Compact/Type Restricted Stock. He told Mr Lee that he was interested in purchasing some samples of this item. Mr Lee reached under the counter and produced the item shown in the photograph. Upon being asked why this item was not openly displayed, Mr Lee said that it was not a genuine one and that he only sold it if it was asked for by a customer.

5.  Mr Wong purchased 5 of these items. The two negotiated over a price and Mr Lee said that he could not give any further discount because of the “risks” involved in selling such products. These items were then taken away by Mr Wong who took them to the Plaintiff for examination – more of which presently.

6.  On 11 September 2008 Mr Wong visited the shop again. On this occasion he said that he was interested in purchasing accessories of guns made by the Plaintiff which he mentioned by name. Nevertheless he said that he preferred to purchase items that were similar but cheaper. On this occasion he was able to purchase two other accessories which were also kept under cover. Only photographs of these accessories were open to public view. Again on being asked about it Mr Lee confirmed these products were not genuine and came at a lower price. For this reason they were not displayed and only sold to customers asking to purchase such items. Mr Wong made purchases of two additional items. He paid in cash and was given receipts by Mr Lee evidencing the purchases.

7.  The three items purchased on these two occasions were very similar in appearance to one’s manufactured by the Plaintiff. They were the MIAD-Mission-Adaptable Grip (Exhibit “LYMS-17”), the CTR‑Compact/Type Restricted Stock (Exhibit “LYMS-18”) and a Polymer Magazine (PMAG)(Exhibit “LYMS-19”).

8.  It is now submitted and supported by the affirmation evidence filed on behalf of the Plaintiff that what Mr Lee sold to Mr Wong were infringing copies of the three accessories that I have just referred to.

9.  I have examined what Mr Lee sold to Mr Wong as well as the three items as manufactured by the Plaintiff. To the naked eye they are virtually identical in appearance.

10.  The Plaintiff relies on the original drawings from which their products were manufactured. These original computer drawings are in evidence.

11.  Mr Philips Wong, who appears for the Plaintiff (Mr Lee is in person), correctly submits that he needs to prove four matters if he is to succeed.

(a)  That copyright subsists in the works relied on,

(b)  That the Plaintiff owns the copyright,

(c)  That the Defendant’s product constitutes an infringing copy and,

(d)  That the Defendant has committed infringing acts.

12.  There is no doubt at all that copyright subsists. The original computer drawings were done on the Plaintiff’s behalf by a Mr Michael Mayberry who was one of its employees. This is all set out in the second affirmation of Mr Lam the Plaintiff’s managing director.

13.  Equally, there is no doubt that the Plaintiff is the owner of the copyright to those original drawings from which its 3 products were manufactured.

14.  Given the fact that an examination of the three products sold by Mr Lee to Mr Wong shows that these are virtually identical to the Plaintiff’s finished product I have no doubt that these items are infringing copies and that they infringe the Plaintiff’s copyright which subsists in the original computer drawings.

15.  Lastly, Mr Wong’s evidence overwhelmingly proves that Mr Lee has committed infringing acts of the Plaintiff’s copyright by selling and/or offering to sell the three items purchased by Mr Wong.

16.  Based on this evidence there can only be one outcome which is that Mr Lee, as Defendant, has not been able to demonstrate any triable issue which would require this case to go to trial. The Plaintiff must therefore have its judgment in the terms of its summons save that paragraphs 4 and 5 will be amended by substituting the words “of the Order” in place of the words “of personal service”. Save for these amendments, which I allow without re-service, the judgment will go in terms of the summons as now amended.