HKSAR v. TSE CHI TON AND ANOTHER

CACC466/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 466 OF 1998

(ON APPEAL FROM DCCC 210 OF 1998)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 10th August 1998, the Applicants (D2 and D3 respectively) were convicted of offences relating to the infringement of copyright in the District Court following a trial before Judge Whaley. D2 received sentences amounting to one a half years and D3 was sentenced to a total of three years' imprisonment. They now seek leave to appeal against conviction. Earlier, they indicated they did not wish to pursue their applications in relation to sentence and these we dismiss.

2. In the first charge, both defendants were convicted of contravening section 118(1)(d) of the Copyright Ordinance, Cap. 528, by being in possession of infringing copies of copyright works, namely 8,200 CD-Rom discs and 5,000 music compact discs with a view to distribution. D3 was convicted on the basis that he was the principal offender in this offence and D2, together with D1, were convicted on the basis that they were aiding and abetting D3 to commit it.

On the second charge, D2 and D3 were convicted of contravening section 118(1)(a) of the Ordinance, namely by making for sale or hire without the licence of the copyright owner 7,828 CD-Rom discs, which were infringing copies of the literary work "Fantastic Four".

3. The third charge only concerned D3 who was convicted of contravening section 118(1)(d) of the Ordinance, namely, by possessing for the purpose of trade or business 32 music compact discs and one recordable compact disc which were infringing copies of copyright works with a view to distribution.

4. The fourth charge also only concerned D3, who was convicted of contravening section 118(4)(d) of the Ordinance by being in possession of articles specifically designed or adapted for making copies of the copyright work "Fantastic Four", being infringing copies of the work, which were used or intended to be used to make infringing copies of "Fantastic Four" for the purpose of trade or business.

5. The allegations disclosed the general picture, as the judge expressed it, that on 2nd September 1997, Customs and Excise officers, having mounted a surveillance operation on and around Elite Industrial Building in Cheung Sha Wan Road, caught the defendants red-handed. Rooms 706 and 707 on the seventh floor of that building housed the factory which was producing pirated CDs. The machinery was actually in operation at the time of the raid. It was a sophisticated operation. D3's evidence in the trial was that the factory could produce 18,000 CDs a day.

6. At the time of the raid, D1 and D2, having spent several hours inside the factory, were intercepted while they were wheeling a trolley containing 19 cartons of CDs out of the workshop to the lift. They were about to take them down to the loading bay in the basement car park where D3 was waiting for them with his vehicle. The mastermind or "boss" behind the operation was D3. He allegedly gave admissions to the Customs officers to the effect that this was his role.

7. D2's ground of appeal is that the judge relied on the evidence of Customs officers despite the inconsistencies in their evidence. D3 has the same ground of appeal but goes on to say that there was "not a grain of truth" in the evidence given by those officers.

8. D3 has at court today added a number of further grounds.

9. It has to be said from the outset that the 17-page Reasons for Verdict of the judge dealt in painstaking detail with every aspect of the case. It is difficult to imagine that evidence in a case of this kind could have been more overwhelming. Added to this, the judge found that the Customs officers had given evidence straightforwardly, giving him no reason to suspect that they were telling anything other than the truth.

10. There was a special issue to determine the admissibility of the statements made by the defendants but they did not give evidence on that issue. On the general issue, only D3 gave evidence. The judge disbelieved the defence that he put forward of merely being an employee of a "Mr. Woo" from the mainland who had supposedly shown him letters authorizing the production of CDs. The judge formed the impression that D3 was a poor witness and described his evidence as "evident fabrication".

11. In the trial, the Applicant had produced so-called "authorization letters" which purported to authorize the production of these CDs. The judge found that the letters were not authentic.

12. In court today, the Applicant said that he had not produced the authorization letters to the Customs officers because he was so scared. He was of course entitled to remain silent if he wished to do so, but the judge appears to have understood this particular area of the case very clearly indeed. The absence of Mr. Woo from the case, who was also an essential part of the defence, was something which may well have called for comment. It does not reflect bias on the part of the judge. But in any event the absence of Mr. Woo was not the reason D3 was convicted.

13. D3 also pointed out today that at the top of page 20 in the appeal bundle the judge said this:

"I am satisfied beyond a reasonable doubt that both the 1st and 2nd defendants well knew on the evidence that all the CDs in question were pirated ones, namely infringing copies and they well knew that these were being produced for the purposes of trade or business, and for distribution as such."

14. The complaint made by D3 is that the judge made no reference to him in the context of what he was saying about those CDs. If D3 has read the Reasons for Verdict he will know perfectly well that two pages earlier the judge had said why D3 was being convicted. To give a small flavour as to what the judge was saying, but not to read all of it, he said that the admission made by D3 at the scene and subsequently confirmed in the post-record that all of the CDs produced in the premises were pirated was coupled to other admissions in which he explained that he was in charge of the business, rented the premises and even in charge of hiring D2. It was at that point that the judge went on to say that the authorization letters were crudely drafted, omitting the sort of details that would be expected in genuine letters of authority.

15. The judge did not err in law or in fact and the convictions were inevitable.

16. There is not the slightest merit in the applications and they are dismissed.

17. As the applications were wholly unmeritorious, we shall order, in the case of D3, that three months of the time he has spent in custody awaiting this hearing shall not count towards his sentence. In the case of D2, we shall order that one month of the time spent in custody awaiting this hearing will not count towards his sentence.