HKSAR v. Yu Wai Chuen

HCMA 1027/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1027 OF 2001

(ON APPEAL FROM ESCC 1118 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 29 November 2001

Date of Judgment: 6 December 2001

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J U D G M E N T

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1.This is an appeal against the appellant's convictions only.

2.The appellant was convicted of two offences after trial. The first was an offence of offering for sale infringing copies of copyright works, being compact discs, contrary to s.118(1)(e)(ii) of Cap. 528. The second was one of obstructing a member of the Customs and Excise Service in the course of his duties contrary to s.17F of the Custom and Excise Service Ordinance Cap. 342.

3.The facts of the case are simple. The magistrate found that the appellant was the person in charge of a shop displaying infringing copies of various compact discs. The appellant was heard to say by a Custom & Excise officer to potential customers in the shop "Feel free to look, feel free to choose, buy while stocks last".

4.A Custom & Excise officer then attempted to arrest the appellant. The appellant pushed him away and briefly fled. The Custom & Excise officer went after him and after a brief struggle subdued him and took him into custody

5.The substantive ground of appeal advanced on behalf of the appellant in respect of his conviction on the first charged offence is that "offering for sale" has a particular and certain meaning in law and that the evidence before the learned magistrate was not sufficient to establish that the appellant had offered the compact discs for sale.

6.The conviction in respect of the 2nd charged offence, according to the appellant, would then collapse as the original arrest of the appellant would have been unlawful.

7.So far as the appeal against conviction in respect of the 1st charged offence is concerned the information before the magistrate read as follows:-

"Yu Wai-chuen, you are charged that on the 23rd day of November, 2000 at Shop No.215, 298 Computer Zone, No. 298 Hennessy Road, Wanchai in Hong Kong, you, without the licence of the copyright owner, offered for sale 53 Compact Disc ROMs being infringing copies of copyright works, namely literary works, for the purpose of trade or business."

8.It is quite apparent that it is specifically and solely alleged by that charge that the appellant "offered for sale" the infringing compact discs. The section under which the information or charge was laid reads as follows:-

"S.118(1) A person commits an offence if he, without the licence of the copyright owner-

(e) for the purpose of, in the course of, or in connection with, any trade or business

(ii) offers or exposes for sale or hire;

................. an infringing copy of the copyright work."

9.Mr Tong Says, quite simply, that the prosecution, on the evidence available to them wrongly charged the appellant with "offering" the compact discs for sale. He says the appellant properly could have been, but was not, charged with "exposing" the compact discs for sale or indeed could have been charged with, perhaps, exhibiting the offending discs in public depending on the circumstances of the case.

10.Mr Tong says that for a very long time it has been the law that an "offer for sale" in both criminal and civil law have meant the same thing, and that the evidence before the learned magistrate went no further than proof that the appellant had made an invitation to treat.

11.This argument on first blush would seem to contain very little merit and even less common sense. Indeed Mr. Tong candidly admits that.

12.The starting point is the case of Fisher v. Bell [1960] 3 All E.R. 731. That case involved undisputed facts whereby the appellant, a shopkeeper, displayed a flick knife for sale in his shop window for the price of 4 shillings. He did not know it was prohibited to offer flick knives for sale. He was charged in those terms and convicted. He appealed against that conviction on the same ground as the present appellant.

13.Lord Parker in delivering the judgment of the court said this:-

" The sole question is whether the exhibition of that knife in the window with the ticket constituted an offer for sale within the statute. I think that most lay people would be inclined to the view (as, indeed, I was myself when I first read these papers), that if a knife were displayed in a window like that with a price attached to it, it was nonsense to say that that was not offering it for sale. The knife is there inviting people to buy it, and in ordinary language it is for sale; but any statutes must be looked at in the light of the general law of the country, for Parliament must be taken to know the general law. It is clear that, according to the ordinary law of contract, the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly the general law of the country. Not only is that so, but it is to be observed that, in many statutes and orders which prohibit selling and offering for sale of goods, it is very common, when it is so desired, to insert the words "offering or exposing for sale", "exposing for sale" being clearly words which would cover the display of goods in a shop window ......

In those circumstances I, for my part, though I confess reluctantly, am driven to the conclusion that no offence was here committed."

14.I must say that I share Lord Parker's view that it seems wholly inappropriate that a criminal statute prohibiting this sort of activity should be trammelled by the law of contract. That is particularly so, in my view, when the contract itself is an apparently illegal contract or is otherwise void, one would have thought, on the grounds of public policy. It seems particularly inappropriate in those circumstances to incorporate into the very criminal provision which operates to void the contract a criterion which is from the law of contract.

15.But it has been accepted that that has been the position for the last 40 years.

16.Indeed our legislation has adopted a course suggested by the court in Fisher v. Bell and incorporated as an alternative actus of the offence the "exposing" for sale of such prohibited items.

17.That is a clear recognition in the governing legislation that there is a distinction between offering for sale and merely exposing for sale.

18.In the recent case of HKSAR v. WAN Hon Sik, HCMA 526/2001 the facts were similar to the present case. There, the appellant had been a shopkeeper who displayed infringing compact discs for sale. He was heard to tell customers that the shop had compact discs available. He appealed against his conviction for "offering" the discs for sale. Longley D.J. held that:

"............The fact that s.118 of the Copyright Ordinance also penalises a person who "exposes" infringing discs "for sale" indicates that the words "offers for sale" is intended to bear the restricted meaning accorded to it by the general law. Otherwise it would not attempt to penalise those who exposed such items for sale.

The learned Magistrate could not therefore, simply on the basis that they were on display, find that the appellant was offering the infringing discs for sale."

19.In HKSAR v. Chow Kwong Chun HCMA 836/2001 Pang J. also adopted Lord Parker's statement of the law so far as the meaning of "offering for sale" is concerned but decided that the conviction of the appellant was proper because in addition to the compact discs in that case being displayed in the shop there was other evidence of sufficient particularity to enable the convicting magistrate to properly infer that the appellant in that case had in fact offered them for sale.

20.In my judgment the principle of law as expressed by Lord Parker in Fisher v. Bell is a proper expression of the law as it applies in Hong Kong.

21.That conclusion as I say is supported and emphasised by the incorporating into Hong Kong's legislation of a distinction between "offering" for sale and "exposing" for sale in the terms of s.188(1)(e)(ii) of the Copyright Ordinance.

22.Accordingly what amounts to an "offer" for the purposes of that provision is determined by general contractual principles and it has been and remains a principle of the law of civil contract that the display of goods in a shop is not, without more, an offering of those goods for sale.

23.But it must be remembered that in Fisher v. Bell Lord Parker's judgment was in reference to facts which went no further than that simple display in a shop window of an offending item.

24.In Chitty on Contracts (Vol. 1) 28th Ed., p2-012 the learned authors say this:-

"As a general rule, a display of goods at a fixed price in a shop window .................... is an invitation to treat and not an offer; ...................The general rule applies to normal shop window or shelf displays; but it seems that it can be excluded by special circumstances: e.g. if the retailer has stated unequivocally that he will sell to a customer who tenders the required price. The distinction between an offer and an invitation to treat depends, in the last resort, on the intention of the maker of the statement; and where his intention to be bound immediately on acceptance is sufficiently clear it is submitted that a shop window or shelf display may be an offer.........................."

25.That statement in my judgment correctly summarises the law, athough, as I say, the question of the "offeror" intending to be bound by a contract in circumstances such as those envisaged by s.118(1)(e)(ii) seems at best somewhat artificial. What really is in issue in such circumstances is whether the alleged offeror is really promising something to the effect of: "if you pay me the price of the compact disc I promise to sell to you that compact disc."

26.The question which arises therefore in this case is whether there was additional evidence which was available to the learned magistrate from which he was entitled to infer that an offer in those terms to sell the infringing copies had been made by the appellant.

27.The additional evidence relied upon by the learned magistrate in this regard were the words attributed to the appellant to the effect that the customers in the shop should "feel free to look, choose and buy while stocks last".

28.They are broad words indeed. They, in the whole of the circumstances of the case, including the display of the goods and the fact that the words were spoken and repeated to specific customers and not merely addressed to the world at large, were open to an interpretation that the appellant had said he would sell any displayed item selected by a customer.

29.The learned magistrate inferred from those words that an offer had been made by the appellant. He said this:-

" The evidence is overwhelming. It is agreed that the discs concerned are infringing and the evidence is further that they were displayed in the manner described. The appellant was near the entrance of the shop and by his spoken word in all the circumstances, was touting for customers. The words were said twice and I put full weight on them..........

The irresistible inferences are such that lead me to no other conclusion then the appellant did offer the discs for sale and they are infringing copies. ........."

30.In my judgment the magistrate was plainly not relying merely upon the display of the items in the shop. He considered and put full weight on the words of the appellant and the circumstances in which they were said.

31.From that combination of evidence he concluded that the only reasonable inference was that the appellant was making an offer to sell the infringing copies on display in the shop.

32.In my judgment that was an inference which was open to him and which was properly approached by him. Accordingly, the appeal against conviction in respect of the first charged offence is dismissed.

33.I might add that, whilst it is entirely the decision of the prosecuting authority as to how to frame their charges, it seems to me that there is at least a very strong argument that a charge in terms of "offered or exposed for sale" on the construction of s.118(1)(e)(ii) would not be bad for duplicity.

34.I go now to the appeal against conviction in respect of the 2nd charged offence. Mr. Tong appears for the appellant only in respect of his appeal against conviction on the 1st charged offence. The appellant represents himself on his appeal against conviction for the 2nd charged offence. But Mr. Tong has fairly stated in respect of the appellant's appeal against conviction on that 2nd charged offence that it was on the basis that if the appeal against conviction on the 1st charged offence was successful then the Custom and Excise officers were not acting in the course of their duties and the appellant could not have obstructed or resisted that officer in that regard. The appellant relied on that argument briefly proposed by Mr. Tong and advanced no other.

35.Given my ruling in respect of the appellant's appeal against his conviction in respect of the 1st charged offence it is therefore not strictly necessary for me to deal with this argument advanced in respect of his conviction for the 2nd charged offence.

36.But let me say this nevertheless. In my judgment that argument is completely without merit. The question of whether or not Custom and Excise officers are acting in the course of their duties is in no way decided by what charges are eventually laid, or whether a defendant is convicted or acquitted or whether indeed a suspect is ever prosecuted.

37.s.17A of the Custom and Excise Service Ordinance empowers any officer to stop, search and arrest any person he suspects of having committed an offence.

38.It is at that point of time the determination is made as to whether the officer was acting in the course of his duties.

39.On the facts of this case there was ample reason to suspect the appellant was selling infringing copies of compact discs which were on display in his shop. Accordingly there was ample reason to suspect he had committed an offence under the Ordinance. The obstruction of the officer in those circumstances was an obstruction pursuant to s.17F of the Ordinance.

40.In any event the appeal against conviction in respect of the 2nd charged offence is dismissed.

Representation:

Mr W S Cheung, SADPP of the Department of Justice for the Respondent

Mr Paul Tong Hin Sum instructed by the Legal Aid Department, for the Appellant