Case Detail

CACC000013A/1999

	CACC 173/1999	CACC 536/1999
	CACC 36/2000	CACC 51/2000
	CACC 52/2000	CACC 56/2000
	CACC 13/1999	CACC 27/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NOS. 173 & 536 OF 1999,
NOS. 36, 51, 52 & 56 OF 2000 AND NOS. 13 & 27 OF 1999

(ON APPEAL FROM DCCC 1359/1998, 640/1999, 1128/1999, 808/1998,
1152/1998, 129/1998, 1123/1998 & 1020/1998)

_____________________

CACC 173/1999

BETWEEN
	HKSAR	Respondent

	AND

	WU WEI-CHENG	Applicant

_____________________

CACC 536/1999

BETWEEN
	HKSAR	Respondent

	AND

	POON NGOK-MING	Applicant

_____________________

CACC 36/2000

BETWEEN
	HKSAR	Respondent

	AND

	YAN LAM-KWAN	Applicant

_____________________

CACC 51/2000

BETWEEN
	HKSAR	Respondent

	AND

	NGAI KA-TAK	Applicant

_____________________

CACC 52/2000

BETWEEN
	HKSAR	Respondent

	AND

	NGAI KA-TAK	Applicant

_____________________

CACC 56/2000

BETWEEN
	HKSAR	Respondent

	AND

	TAM KA-KUI	Applicant

_____________________

CACC 13/1999

BETWEEN
	HKSAR	Respondent

	AND

	CHUI KWOK-KEUNG	Applicant

_____________________

CACC 27/1999

BETWEEN
	HKSAR	Respondent

	AND

	CHEUNG CHI-MING	Applicant

_____________________

Coram: Hon. Stuart-Moore VP, Wong & Woo JJA

Date of Hearing: 6 April 2000

Date of Judgment: 6 April 2000

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

1. The consolidation of these eight applications arises because all of them are concerned with offences in breach of copyright and exactly the same point on appeal arises in relation to the first six of them.

2. The Applicants in CACC 173/1999, 536/1999, 36/2000, 51/2000, 52/2000 and 56/2000 are represented. It is convenient to deal with these applications first of all.

3. In the first application, CACC 173/1999, the Applicant originally abandoned his application seeking leave to appeal against conviction and, on 8 September 1999, his sentence application was dismissed in this court. The Applicant now seeks leave to treat his abandonment of the application relating to conviction as a nullity. He was charged firstly with possession of obscene articles, namely 357,679 video compact discs ("VCDs") for the purpose of publication, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. The second charge related to the Applicant's possession, for the purpose of trade or business, of infringing copies of copyright works, namely 92,242 VCDs, with a view to committing any act infringing the copyright licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap. 528 ("the Ordinance"). The Applicant was convicted after trial in the District Court and he was sentenced on 22 March 1999 to fifteen months' imprisonment on the first charge and to three years' imprisonment on the second, with two years of this sentence to run consecutively, making three years and three months in all.

4. In the second application, CACC 536/1999, the Applicant pleaded guilty in the District Court to possessing 13,287 music compact discs and 100 VCDs which were infringing copies of copyright works, contrary to section 118(1)(b) and section 119(1) of the Ordinance. He was sentenced on 5 October 1999 to twenty months' imprisonment. He now seeks leave to appeal against conviction out of time.

5. In the third application, CACC 36/2000, the Applicant pleaded guilty in the District Court to a charge brought under the same sections of the Ordinance relating to the second application. In this case, the particulars related to 255,154 VCDs for which he was sentenced on 7 January 2000 to two years' imprisonment. The Applicant now seeks leave to appeal against conviction.

6. In the fourth and fifth applications, CACC 51/2000 and 52/2000, the Applicant is the same person.

7. In the fourth application, CACC 51/2000, there were two charges which were brought under the same sections of the Ordinance, namely sections 118(1)(d) and 119(1), and related to 78,138 VCDs and 244 compact discs in the first charge and to 14,735 VCDs in the second. The Applicant pleaded guilty in the District Court to both charges. He was sentenced on 9 November 1998 to concurrent terms totalling two years and four months.

8. In the fifth application, CACC 52/2000, there were two charges and again the Applicant pleaded guilty to them when he appeared in the District Court. The first was brought under section 118(1)(d) and section 119(1) of the Ordinance. This related to 25,047 music compact discs and to 60,000 VCDs. The second charge related to the possession of obscene articles under section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, namely 25,890 VCDs. On 2 December 1998, the Applicant was sentenced, in overall effect, to serve an additional one year and eight months to the sentence passed in CACC 51/2000, making the combined total sentence involved in these two applications four years' imprisonment. The Applicant in the fourth and fifth applications now seeks leave out of time to appeal against these convictions.

9. In the sixth application, CACC 56/2000, the Applicant was convicted after trial in the District Court of possessing infringing copies of copyright works, namely 35,033 VCDs and 4,369 music video compact discs, contrary to sections 118(1)(d) and 119(1) of the Ordinance. On 28 August 1998, he was sentenced to ten months' imprisonment. He now seeks leave out of time to appeal against conviction. In his case, he is currently serving terms of imprisonment in relation to other offences which are not affected by this application.

10. In all six applications the point which has arisen in relation to the offences brought under sections 118(1)(d) and 119(1) is one with which the court is familiar having, on 7 March 2000, dealt with the consolidated appeals in CACC 38/2000 and 67/2000 where the same point arose.

11. It is conceded by Mr Zervos, who appears on the Respondent's behalf, for the same reasons given by this court in CACC 38/2000 and 67/2000 that the convictions with which we are concerned in the first six applications cannot stand.

12. It is unnecessary to rehearse in any detail what was said in the judgment given on the last occasion. Suffice it to say, offences charged under section 118(1) which are subject to the penalties provided by section 119(1) of the Ordinance are summary offences which, unless accompanied by an indictable offence, cannot be, and should not have been, transferred to the District Court. The provisions of section 88(1) in Part IV of the Magistrates Ordinance, Cap. 227 were not complied with. Putting this another way, the District Court had no jurisdiction over these offences unless they were transferred to the District Court with an indictable offence giving the District Court jurisdiction, under the provisions of sections 74 and 75 of the District Court Ordinance, Cap. 336, to deal with them.

13. It is only right to say that the section 118(1) offences under the Ordinance were transferred at a time when it was believed they were indictable offences and, as soon as the mistake was realised, the Department of Justice was the first to bring attention to the problem which had arisen.

14. In CACC 173/99 and CACC 52/2000, the first and the sixth of these applications, the charges brought under the Ordinance were accompanied by offences charged under section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance. However, these were summary offences and were transferred to the District Court because it was believed that the section 118(1) offences under the Ordinance were indictable. Accordingly, the District Court had no jurisdiction to deal with these offences now that it has been established the section 118(1) offences were not indictable.

15. The purported transfers of all the charges relating to the first six applications were therefore null and void because the magistrates who transferred them had no jurisdiction to do so. Jurisdiction over all these offences therefore remains vested in the magistrates' court.

16. The error which has arisen in all of these cases seemingly came about because on 27 June 1997, the Copyright Ordinance, Cap. 39 was replaced by the present Ordinance, Cap. 528. Section 5(1) of Cap. 39 was replaced by section 118(1) of Cap. 528. However, while offences under section 5(1) of the old ordinance were liable to certain penalties on conviction on indictment, no provision was made for section 118(1) offences to be tried on indictment. This explains where the error was made in all of these six applications.

17. Turning now to the remaining applications, the seventh application, CACC 13/1999, where the Applicant appears in person seeks leave out of time to renew an appeal against conviction and to appeal against sentence. These applications are misconceived. In fact, the Applicant has today indicated that he does not wish to proceed on his application relating to conviction and we can formally indicate, if need be, that we dismiss this application because, on 30 August 1999, this court dismissed the application after a hearing as to its merits. He was charged, firstly, with possession 60,339 VCDs which were infringing copies of cinematograph films, contrary to section 5(1) of the Copyright Ordinance, Cap. 39, and, secondly, with a similar charge brought under the same section, relating to 4,948 compact discs. These charges, on which he was found guilty after trial, were indictable and the transfer to the District Court was perfectly proper. He was sentenced on 21 December 1998 to a total of two years' imprisonment. His co-defendant received a lower sentence in order that his plea of guilty could be reflected in the sentence imposed on him. There are no grounds for giving leave out of time in relation to the sentence application. It appears that it was an application prompted as the result of letters received by the first six applicants, and may be others, from the Department of Justice which were sent to them in order to point out the procedural error that had been made in having their cases transferred to the District Court. The procedural error did not apply to the Applicant in CACC 13/1999 although he probably thought that it did.

18. In the eighth application, CACC 27/1999, precisely the same position applies as it did to the previous application, CACC 13/1999. The Applicant was convicted in the District Court of possessing 59,188 VCDs and 12,988 music compact discs which were infringing copies of works in which copyright subsisted. The offence was brought under the provisions of section 5(1) of the Copyright Ordinance, Cap. 39. This was an indictable offence with which the District Court had jurisdiction to deal. The Applicant was sentenced on 12 January 1999 to a term of two years' imprisonment. The Applicant was originally seeking leave to treat the abandonment on 7 July 1999 of his application for leave to appeal against conviction as a nullity. This was not pursued and we can dismiss it. In addition, he now seeks leave to appeal out of time against sentence. However, this does not appear to have been an appropriate application. Mr Zervos pointed out there had been a previous such application which the Applicant abandoned and, in effect, we are therefore being asked to treat his previous abandonment as a nullity. There is no merit to the application whatever and we do not propose to give leave to do so. Again, he appears to have been prompted to make his application by having read a letter from the Department of Justice to another applicant, whoever he may be, who merited a letter being sent to him.

19. Accordingly, for the reasons we have given, the convictions which were recorded in CACC 173/1999, 536/1999, 36/2000, 51/2000, 52/2000 and 56/2000 must be quashed. For these purposes, we treat the abandonment of the application for leave to appeal against conviction as a nullity in CACC 173/1999, we give leave out of time in CACC 536/1999, 51/2000, 52/2000 and 56/2000 and we give leave in CACC 36/2000. Treating this hearing as the appeal, we allow the appeals in each of those cases and quash the convictions.

20. In CACC13/1999 and 27/1999, we refuse leave and those applications are dismissed.

(M. Stuart-Moore)	(Michael Wong)	(K.H. Woo)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr Kevin Zervos, SADPP, of the Department of Justice for the Respondent.

Mr William Allan, instructed by the Legal Aid Department, for the Applicant in CACC 173/1999, CACC 536/1999, CACC 36/2000, CACC 51/2000, CACC 52/2000 and CACC 56/2000.

Applicants in CACC 13/1999 and CACC 27/1999 appeared in person.

CACC000013/1999

CACC 13/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 13 OF 1999

(ON APPEAL FROM DCCC 1123 OF 1998)

BETWEEN
	HKSAR	Respondent

	AND

	CHUI KWOK KEUNG	1st Applicant
	TAM KA KUI	2nd Applicant

-------------------

Coram: Hon Nazareth, V-P, Wong & Keith, JJA in Court

Date of Hearing: 10 August 1999

Date of Delivery of Judgment: 30 August 1999

----------------------

J U D G M E N T

-----------------------

Wong, J.A. (giving the judgment of the Court):

1. The applicants faced two joint charges under s.5(1) of what has been referred to as the old Copyright Ordinance, Cap.39. The old ordinance has now been replaced by the Copyright Ordinance, Cap.528 which came into operation on 27 June 1997. The offences to which the present appeal relate were committed on 20 June 1997 and the charges were therefore brought under the old ordinance. Be that as it may, the only relevance between the old and the new ordinances, in so far as this case is concerned, goes to sentence, with which we are no longer concerned following the withdrawal of his application for leave to appeal against sentence by Tam Ka Kui, the 2nd applicant. The trial took place before Her Honour Judge Toh in the District Court. The 2nd applicant pleaded guilty to both charges at the outset and was sentenced to a total of 15 months' imprisonment. Chui Kwok Keung, the 1st applicant, pleaded not guilty to both charges and was convicted after trial and sentenced to two years' imprisonment in total.

2. The 1st applicant applies for leave to appeal against conviction. We will deal with his application.

3. The charge sheet which contains two charges reads as follows :-

" 1st Charge
Statement of Offence
Possession for the purpose of trade or business of infringing copies of cinematograph films in which copyright subsisted, contrary to section 5(1) of the Copyright Ordinance, Chapter 39.
Particulars of Offence
CHUI Kwok-keung and TAM Ka-kui, on the 20th day of June, 1997 at Front Portion, 3/F, 21 Dundas Street, Mongkok, Kowloon, in Hong Kong, had in their possession for the purpose of trade or business 60,339 video compact discs being infringing copies of cinematograph films in which copyright subsisted.

2nd Charge
Statement of Offence
Possession for the purpose of trade or business of infringing copies of sound recordings in which copyright subsisted, contrary to section 5(1) of the Copyright Ordinance, Chapter 39.
Particulars of Offence

CHUI Kwok-keung and TAM Ka-kui, on the 20th day of June, 1997 at Front Portion, 3/F, 21 Dundas Street, Mongkok, Kowloon, in Hong Kong, had in their possession for the purpose of trade or business 4,948 compact discs being infringing copies of sound recordings in which copyright subsisted."

4. The facts are simple. Customs officers gave evidence that on 20 June 1997 they were keeping observation in the staircase outside the 3rd floor of 21 Dundas Street, Mongkok. Shortly after they took up their positions, they saw the 1st applicant leaving the flat with a rucksack on his back. He was stopped and taken back to the flat by the officers. There was no furniture inside the flat except a cardboard box and stacks of video compact discs (VCDs) in a room shown on the left of a photograph. The same photograph depicts another room on the right, again with stacks of VCDs and cassette discs (CDs). The rooms were not locked. At the time of entry, the room on the left was closed and as for the room on the right it was not completely closed off. The officers said that when they entered the flat the stacked VCDs on the floor in the room on the right were visible to them. From this, the judge drew the inference that the 1st applicant must have clearly seen the VCDs when he was inside the flat prior to leaving.

5. A search was conducted. Inside the rucksack were 1,024 VCDs and in one of the trousers pockets of the 1st applicant the officers found two keys which fitted the iron grille and the wooden door of the entrance to the flat. The 1st applicant was arrested. The flat was searched and a total of over 80,000 copies of VCDs, and this includes the number found in the rucksack, were seized. On subsequent examination, 60,339 VCDs were found to have infringed copyright and 4,948 CDs were found to have infringed the copyright of the sound recording.

6. The 1st applicant elected to give evidence. He said that he had been working for the 2nd applicant as a courier or mover and had been to the flat about six times before 20 June. The last time he was there was on 19 June. He was never told to move things from the flat, only to move boxes up there from the ground floor after they had been delivered. He had no idea what was inside those boxes. On 20 June, because the 2nd applicant was short-handed, he was told to go up to the flat to carry the rucksack down to the ground floor and he thought he was to give it to the 2nd applicant. He did not know what was inside the rucksack and he had never looked into the two rooms shown in photograph 11, P1. He said both rooms were locked and sealed shut. He also said that when he was pushed into the flat, his head hit the wall and he lost consciousness so he could not see the room being opened and his rucksack being searched and the contents taken out.

7. The judge rejected his evidence and found the charges proved against him.

8. The 1st applicant makes three complaints in his Amended Perfected Grounds of Appeal Against Conviction. Mr Cheng Huan, SC, who appears for the 1st applicant before this Court, invites us to deal with Grounds 1 and 3 together as they are closely inter-related. We will proceed on this basis. These are the Grounds.

"Ground 1
The learned judge erred in law in equating possession with 'only control or custody' (Letters L to M at page 22 of the 'Reasons for Verdict').
Particulars
a) The learned judge failed to direct herself that it was incumbent on the prosecution to prove that the Applicant also had knowledge that the items found in his physical possession and those found inside the premises were 'VCDs' and 'CDs'.
b) The learned judge made no findings at all that the Applicant knew that the items were in fact 'VCDs' and 'CDs'.
c) Having failed to make any such findings aforesaid the learned judge erred in applying the presumption under section 5 of the Copyright Ordinance Cap.39.
Ground 3
In relation to the VCDs found inside the premises the learned trial judge erred in her 'Reasons for Verdict' in inferring guilt of the Applicant on the basis that
a) The Applicant once inside the premises would have been able to see the VCDs and CDs;
b) The Applicant could gain easy access to the premises (page 23 letters D to F).
These reasons given by the learned judge are not sufficient in law to infer guilt."

9. The point raised by Mr Cheng Huan in argument is a short one. He submits that the judge failed to direct or misdirected herself on the meaning of possession. It is wrong to define possession in the way she did and that is "possession does not mean ownership, only custody or control". In the context of this case, Counsel says that possession means custody or control with knowledge, i.e. that the 1st applicant knew what were in the rucksack and the flat were VCDs or CDs. Mens rea is, therefore, an important ingredient of the offence created under s.5(1). Counsel refers to the statutory defence in s.5 which provides that once "a person is found to be in possession for trade or business any infringing copy of a work in which copyright subsists shall unless he proves to the satisfaction of the court that he did not know and that he had no reason to believe that it was an infringing copy of any such work shall be guilty of an offence". Counsel also submits that the judge had probably confused knowledge of the contents in the rucksack and the flat with knowledge that they were infringing copies. The judge was thinking, he argues, that s.5 creates a double presumption and once the 1st applicant was found to be in custody or control of what were in the rucksack and the flat, he would be presumed to know that they were VCDs and CDs. Furthermore, he is presumed to know that they were infringing copies. Clearly, this cannot be the case. He says that the judge had not addressed or properly addressed her mind to this vital element of the case. He further submits that the evidence in this case is not sufficient to draw inferences of guilty knowledge.

10. Section 5(1) of the Copyright Ordinance (Cap. 39) provides, so far as is material :

"... any person who for the purposes of trade or business has in his possession any infringing copy of a work ... in which copyright subsists ... shall, unless he proves to the satisfaction of the court that he did not know and that he had no reason to believe that it was an infringing copy of any such work ..., be guilty of an offence ..."

11. In order to bring home a charge under the section, it is incumbent on the prosecution to prove that

(i) The article to which the charge relates must be an infringing copy of a work in which copyright subsists.
(ii) The defendant must have been in possession of such an article.
(iii) He must have been in possession of it for the purposes of trade or business.

This last element can be proved by circumstantial evidence, e.g. the quantity and value of the VCDs and CDs and in this case it would not be too difficult to draw such an inference. Once the prosecution has proved all the three elements beyond reasonable doubt, then and only then the burden shifts to the 1st applicant to avail himself the statutory defence under s.5 that he did not know and he had no reason to believe that the VCDs and CDs found in the rucksack and the flat were infringing copies. He only needs to discharge the onus of proof on a balance of probabilities.

12. The definition on possession given by the judge, if it stands alone or if the judge had stopped there, is clearly inadequate and defective. The question is does it stand alone or did the judge stop there. The answer must be "No". Both before and after the judge said "possession does not mean ownership, only custody or control", she had referred to evidence which could only be relevant to the issue of knowledge. In the Reasons for Verdict at page 20 F-H, she said :-

"The upshot of their evidence was that when they entered the premises the stacked VCDs on the floor in the room on the right was visible to them and therefore by inference the defendant when he was inside the flat prior to leaving must have also clearly seen them."

At the same page S-T :-

"He said he had been working for the 2nd defendant as a courier or mover and had been to the subject premises about six times before 20 June. The last time he was there was on 19 June."

At page 23 B-J :-

"I have no doubt about the customs officers' evidence about seeing the defendant and taking him into the subject premises and the layout of the premises when they first entered. I also have no doubt that the defendant when he was inside the flat would have been able to see the VCDs and CDs in the room on the right as it was open to view and that the room on the left, though closed, was not locked and the defendant could gain easy access if he wanted to since he had the keys to the premises."

13. Although the judge did not expressly state that she found that the 1st applicant saw the VCDs and CDs and therefore knew what they were, these passages could serve one purpose and one purpose only and that is that the 1st applicant had knowledge that what were inside the rucksack and the flat were VCDs and CDs and that he had custody or control of them. We are in no doubt that that was what she in fact found. If she had not been sure, she would have said so.

14. Reading the Reasons for Verdict as a whole, it is not possible that she could have confused knowledge of what were in the rucksack and the flat with the statutory defence of knowledge of infringing copies. At the end of her Reasons for Verdict, she said at page 23 R-S and page 24 A-B :-

"I am aware that the defendant need only prove on a balance of probabilities or more likely than not that he had no knowledge of the infringing copies of these VCDs and CDs in both the flat and the rucksack but he has failed to do so."

15. Here what the judge was saying is that once the prosecution had proved that the 1st applicant was in possession of the VCDs and CDs in the rucksack and the flat in the sense that he had custody or control of them and he knew that they were VCDs and CDs, the 1st applicant can fall back on the statutory defence that he did not know and had no reason to believe that the VCDs and CDs were infringing copies. He needs only to discharge the burden cast upon him on a balance of probabilities. It is very clear to us and we do not think that the judge could have in the slightest degree misunderstood or confused.

16. All the ingredients of the offence having been present and proved, the judge was perfectly entitled to come to the conclusion that the 1st applicant had knowledge of what were in the rucksack and the flat were VCDs and CDs and that he had custody or control of them and they were infringing copies which the 1st applicant had possession for the purposes of trade or business.

17. Grounds 1 and 3 therefore fail.

18. Ground 2 relates to the first charge only. It reads :-

"This conviction is unsafe and/or unsatisfactory because the evidence adduced did not support the particulars as alleged.
Particulars
a) There were two alleged separate offences : namely possession of 1,024 VCDs found in the physical possession of the Applicant (outside the premises) and the remaining 59,315 VCDs (found inside the premises).
b) In these circumstances there should have been two separate and distinct charges."

19. Apart from what is stated in the written amended ground, no arguments have been advanced before us nor is there anything in Counsel's skeleton submission. No authorities were cited. All Counsel says about this Ground is that it is unsafe and unsatisfactory.

20. There was no objection taken at the trial that charge one was bad for duplicity. No complaint is made before us that the 1st applicant has been prejudiced or injustice has occurred as a result.

21. As the finding of the VCDs in the rucksack and the flat was so close both in time and place, it is entirely proper to prefer one charge instead of two separate charges. In this way, it serves to better reflect the overall criminality.

22. There is no merit in this Ground and must be dismissed.

23. In the result, we refuse the application.

(G P Nazareth)	(Michael Wong)	(Brian Keith)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr Robert S.K. Lee, S.A.D.P.P. and Mr David Leung, S.G.C., for D.P.P./HKSAR

Mr Cheng Huan, S.C. and Mr A.M. Omar, inst'd by M/s Paul Kwong & Co., for the 1st Applicant

Ms Juliana Chow (D.L.A.) assigned for the 2nd Applicant

HKSAR v. CHUI KWOK KEUNG

Related cases with same parties

Files (2)