R. v. Li Ka Ka and Another

LAM Kwan-yee

2nd Appellant

The allegation by the Crown against both applicants is simple and straight forward. It was suggested that the two of them at the material time were carrying a carrier-bag inside which there were a total of 153 copies of infringing CDs in which copyrights exist. The suggestion was that they were carrying them for the purpose of trade.

The defence of the applicants at the trial was that they were completely not involved in this particular matter. So far as the 1st applicant was concerned, she said at the material time she was just there, waiting for the 2nd applicant. She said she saw another man selling those infringing CDs and then there was some hawker control force, people arriving and the man who had been selling those infringing CDs left. She was then approached by a police officer. When she was asked question about those infringing CDs, she said she knew nothing about it, but nevertheless, she was taken back to the police station and was charged with the present offence.

So far as the 2nd applicant was concerned, she said at the material time she was just going down to the area where this offence was said to have occurred, in response to the invitation by the 1st applicant. On arrival, she saw the 1st applicant being questioned by the police officers and when she admit that the 1st applicant was someone known to her, she then was also taken back to the police station and was charged with the present offence.

One of the issues involved at the trial, of course, was whether there was in fact, a subsisting copyright in these CDs in question. In support of such an issue that the prosecution must prove, the prosecution seek to adduce as evidence affidavits - affidavits of the copyright owners. Those affidavits in the form of statements...

And in addition to those statements, there was another affirmation by a Mr TSANG Pak-lin who was the director of the International Recording Copyright Limited. The gist of his affirmation is to set out the respective owners of the copyright of the musical recordings of the CDs in question.

That particular affirmation apparently was sworn before a Mr Robert K K LIE, a solicitor in Hong Kong. Such admission was, of course, purported to be admitted under section (9) of the Copyright Ordinance.

The wording of section (9) of the Copyright Ordinance is clear that affidavits to be admissible under this section has to be affidavit:

"...made on oath before a magistrate or a notary public if it is made at any place within the Commonwealth or before a consular officer of Her Majesty's Government in the United Kingdom or a notary public if it is made at any place outside the Commonwealth."

Clearly, the format of the affidavit of Mr TSANG did not comply with section (9) of the Copyright Ordinance, a point that Miss WAN quite fairly and properly conceded.

That being the case, the admission of the affidavit of Mr TSANG's is in fact, as a result of a clear error on the part of those for the prosecution and the learned magistrate. Without such affirmation and essential ingredients of the offence have not been made out.

That being the case, the convictions against both applicants cannot stand, although the 2nd applicant had already filed a notice abandoning the application for leave to appeal against conviction.

In the light of what I have just said, I think it is right that the court should grant her leave to revive the application for leave to appeal against conviction and I also grant the application -- treat this application as an appeal against conviction and allow the appeal and, of course, quash the conviction against both applicants.

On the question of a re-trial, I notice the nature of the offence, the circumstances pertaining to such an offence and the way in which the matter was handled by the learned magistrate. I'm also mindful of the fact that both applicants have been detained in the training centre for a period of about four months. And bearing in mind also their age, I do not consider it is right that the matter ought to be referred back to another magistrate for a re-trial.

The application for a re-trial is therefore, refused. That's all, thank you.