HKSAR v. Chau Chiu Wong
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HCMA000091/2000 HCMA91/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (APPELLATE JURISDICTION) MAGISTRACY APPEAL NO.91 OF 2000 (On Appeal from NKCC 6214 OF 1999) ----------------------
----------------------- Coram: Hon Nguyen J in Court Date of hearing: 27 April 2000 Date of judgment: 30 May 2000 --------------------- J U D G M E N T ---------------------- 1. The appellant was convicted on 12 January 2000 by Mr David Dufton sitting at North Kowloon Magistracy of the offence of possession for the purpose of trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, contrary to section 118(1)(d) and section 119(1) of the Copyright Ordinance, Cap.528. 2. The particulars of the charge are that on 14 December 1998 outside No.31 Sai Yee Street, Kowloon, he had in his possession 4082 video compact discs ("VCDs") and 399 music compact discs ("CDs") which were infringing copies of copyright works. 3. The prosecution's case was that on the day in question two uniformed police officers who were on patrol duty found the appellant pushing a trolley with some cartons of goods on it. When he was stopped by the police and eventually when the cartons were opened, they were found to contain the VCDs and the CDs which are the subject matter of the charge. Also contained in the cartons were 4858 VCDs and 1291 CDs which the prosecution could not prove were infringing copies. 4. It was common ground that after the appellant was arrested and taken on board a police vehicle, the 2nd defendant in the case appeared and claimed to the police officers to be the owner of the goods in question. The 2nd defendant was not arrested nor taken to the police station. Subsequently, the 2nd defendant went to the police station to explain to the police that he was the actual owner of the goods on the trolley which the appellant was arrested for being in possession of. Eventually the 2nd defendant was charged jointly with the appellant. He pleaded guilty and was sentenced to eight months' imprisonment. 5. On 28 January 2000, the appellant applied to me for bail pending appeal. At that hearing, I did not have anything like the material which I now have before me, and I certainly did not have the magistrate's Statement of Findings. In the event, the application for bail pending appeal was refused and the appellant has been in custody since the day of sentence. 6. The hearing of the appeal took place on 27 April 2000 and was completed on the same day. I reserved judgment but ordered that the transcript of the 2nd defendant's evidence was to be made available to the court and the parties as soon as possible. In the event the parties decided that time could be saved if they were to be given the tape recording of that part of the evidence, so that they could themselves listen to the tape and come to some agreement as regards what the 2nd defendant's evidence was. The point in issue was whether the 2nd defendant in his evidence testified that the five invoices found on the appellant's person by the police in fact related to the goods which are the subject-matter of the charge. I had also given leave to the parties to submit further written submissions on the effect of the 2nd defendant's evidence, if deemed desirable. In the event, written submission by counsel for both sides were not received by the court until 25 May 2000. The magistrate's findings 7. As I said earlier on, the prosecution's case comprised the evidence of the two police officers who stopped the appellant when they observed him pushing a trolley on the street. There were a number of inconsistencies in their evidence, the details of which I shall not go into. The upshot was that the magistrate found that he was satisfied that the two police officers were honest witnesses and that nothing submitted by the Defence caused him to doubt that they were anything other than truthful witnesses. The magistrate then said :
The magistrate then listed three matters that he was not satisfied on. Firstly, he said that he was not satisfied as to what the appellant did when the police approached him. However, this did not cause him to doubt that when they first observed the appellant, PW1 and PW2 (the two police officers) saw the appellant pushing the trolley. Secondly, the magistrate found that he could attach no weight to what the appellant said to the two police officers prior to his being cautioned. After he was cautioned, he said he knew nothing about the items and when he was interviewed at the police station, he said he did not know what the items in the boxes were. The third matter that the magistrate found that he was not satisfied on was how the carton boxes were packaged when they were on the trolley being pushed by the appellant. 8. The magistrate found as facts the following :
The grounds of appeal 9. The main ground of appeal was that the first finding above by the magistrate was insufficient for the magistrate to draw the inference, which he eventually did, that the appellant knew that the carton boxes contained video compact discs and music compact discs. It was further submitted by Mr Tse, on behalf of the appellant, that there was no admissible evidence for the magistrate to make the finding that the five invoices in fact related to compact discs. PW2, after he had been cross-examined, was asked by the magistrate (at page 71 of the transcript) about the invoices, especially in relation to certain characters which were written under the column "description" after the column "quantity". PW2 said that he thought that one of them referred to a karaoke VCD of a Cantonese opera. That answer was immediately dismissed by the magistrate as opinion evidence and the matter was not pursued any further. The only other reference to these invoices was in the evidence of the 2nd defendant who was called by the appellant to be his defence witness. In the magistrate's Statement of Findings, where the magistrate was summarising the 2nd defendant's evidence, he said "D2 said the invoices related to compact discs". Subsequently in dealing with the defence evidence, the magistrate said :
10. It was argued on behalf of the respondent by Miss Tsang that it is implicit that even though the magistrate made no specific findings that the invoices were related to the infringing compact discs and the video compact discs in question, he must have accepted that part of the evidence of the 2nd defendant to conclude that the invoices were in fact related to the subject-matter of the charge. She said in her submission that throughout the 2nd defendant 's evidence he had only been referring to the infringing discs that he had collected from another person on the date in question. Therefore, she submitted that taking the 2nd defendant's evidence in context, when he said the invoices contained the prices and titles of the infringing discs, he could only be referring to the infringing discs in the boxes in the custody of the appellant. On the other hand, it was submitted by the appellant that the evidence is not clear that the 2nd defendant had said that those invoices related to the discs in question. Further, the magistrate had not stated in his Statement of Findings that he had drawn the inference that the 2nd defendant had meant that the invoices related to the present discs. It was also submitted that this was not the only irresistible inference that could be drawn. 11. In my judgment, where the magistrate appeared to have rejected the 2nd defendant's evidence, if he was in fact relying upon a part of it, it was incumbent upon him to state that clearly and unambiguously. If in fact the magistrate was relying upon the 2nd defendant's evidence that the invoices related to the compact discs, to enable him to make the finding in his second finding of fact mentioned above, he should have stated that specifically. In the event, I am left with not knowing upon what basis the magistrate made the finding that the invoices related to the compact discs. Miss Tsang conceded quite properly that if the invoices did not relate to compact discs, then the evidence of the finding of the invoices on the appellant's person could not advance the prosecution's case any further. 12. During the hearing of the appeal, I had asked counsel to tally the total number of items mentioned in the invoices to see whether it corresponded with either the total number of the infringing copies of VCDs or the total number of suspected VCDs found in the cartons, and it was discovered that the totals did not tally. Determination of the appeal 13. In the event, I am left with one finding of fact by the magistrate, namely that the appellant was seen pushing a trolley on which were exhibits P1 and P6. As I said above, there is no finding by the magistrate to show how he arrived at the second finding of fact that the five invoices related to compact discs. 14. In my judgment, the one finding that the appellant was seen pushing a trolley is insufficient to show that he knew, or must have known, what the carton boxes contained to enable the magistrate to draw the inference that because he knew what the contents of the carton boxes were, he was therefore in law in possession of the contents. The appeal against conviction is therefore allowed and the conviction is quashed.
Representation: Miss Evelyn Tsang, GC of the Department of Justice, for HKSAR Mr Joseph Tse, instructed by Messrs Weir & Associates, for the Appellant |
Further hearings and rulings under HCMA 91/2000