HKSAR v. Chong Chun Sang

HCMA001102/2003

HCMA1102/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1102 OF 2003

(ON APPEAL FROM ESCC 1383 OF 2003)

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Coram: Hon Lunn J in Court

Date of Hearing: 5 December 2003

Date of Judgment: 5 December 2003

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J U D G M E N T

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INTRODUCTION

1.The appellant was convicted after trial by Miss Livesey on 7 October 2003 in Eastern Magistracy. He was convicted of one charge of possession of articles knowing or having reason to believe that they are used or are intended to be used to make infringing copies of copyright work for sale or hire or for use for the purpose of, or in the course of trade of business, contrary to sections 118(8) and 119(2) of the Copyright Ordinance, Cap. 528. The articles in question were a computer tower, a monitor with keyboard, a mouse and 1,081 blank discs.

2.The offence was alleged to have occurred on 9 May 2002 at Shop 217, 2/F Wan Chai Computer City, No.130 Hennessy Road. The appellant was acquitted of two other charges arising out of the same events. The appellant was sentenced to a Community Service Order of 240 hours. He appeals against his conviction only.

THE PROSECUTION CASE

3.PW1 and PW2, two officers in the Customs and Excise Service, testified that on 9 May 2002 they raided the shop premises the subject of the charge. PW1 said that the appellant was seated in front of a computer with his hand on the mouse. The computer was on, running a programme. Another man, the first defendant, was also inside the shop. PW2 testified that he observed the tray to the computer opening on its own, as Mr Mitchell-Heggs for the appellant pointed out that evidence is at odds with other evidence in the case. PW3, an expert in computers, testified that there was indeed a defect in the computer in relation to the ejection of the tray. The tray would not stay closed when the power system was on. An examination of the hard disk revealed software to burn discs and software to be burnt. The former was a programme called Adaptee Toast 4.1, at the time of the raid the photograph of that programme was taken from the monitor screen of the computer.

THE DEFENCE CASE

4.The learned magistrate summarised the defence case thus :

"The Appellant gave evidence of being a computer repairman. He stated that he was in the shop solely to repair the computer. He stated that he had only arrived at the shop some two or three minutes before the customs officers arrived. He stated that when the customs officers appeared he was seated behind the computer, and he may have had his hand on the mouse, but he had not yet undertaken any repair work."

STATEMENT OF FINDINGS

5.Given the defect in the ejection of the tray of the computer and the evidence led in relation to that, the learned magistrate found :

"... As such it was unable of carrying out any duplication/burning function. The evidence of PW2 was that he saw the tray emerging automatically. This is a function, which is not available on the Mackintosh computer. As such the only conclusion that I can draw is that the equipment was not functioning properly at the time of the raid."

She went on to say :

"I found as a fact that,

1.	When PW1 entered the shop, the Appellant was seated behind the counter shown in Exh.P9(2) and (3).
2.	The Appellant was seated in front of the computer which was placed as shown in Exh.P9(7) and (18).
3.	The computer was powered on and one of the pieces of software being executed at the time of the raid was the Adaptee Toast 4.1.
4.	This is a programme used for duplication/copying/burning of discs.
5.	It was the most recent software being executed as can be seen from the screen shown in Exh.P9(7).
6.	The Appellant had his hand on the mouse at the time of the raid.
7.	The Appellant is experienced in the use of computers. This was clear in the courtroom as he operated the defence computer during the x-examination of PW3. I also accepted the Appellant's evidence in this regard.
8.	On the basis of the evidence of PW3 and the fact that PW2 stated that he saw the disc tray emerge automatically, the only inference I could draw was that the equipment was not functioning properly at the time of the raid, and therefore was in need of repair."

6.Of the defendant's evidence she found :

"... I did not find the Appellant to be a truthful and honest witness. He gave evidence that at the time, he was employed by an outside company, and that he had been sent to the raided premises to repair the equipment and he had in effect only just arrived. There was no documentation found at the scene by the prosecution witnesses, which indicated that the Appellant was there as a repairman. No documentation was provided by the Appellant in court as to his employment or indeed any job related papers. There was also no indication given at the scene that he was there as a repairman."

7.The latter finding clearly was a rejection of evidence given by the appellant in cross-examination when he asserted that whilst in the shop he did identify himself to the Customs and Excise officers as a "repairman". That issue was key to his entire defence. However, as the magistrate observed this was not a matter put to the prosecution witnesses in cross-examination. Those witnesses testified the appellant was silent in face of arrest and caution. Also, it is to be noted it was not a matter led in evidence-in-chief.

8.The learned magistrate rejected the appellant's evidence that he was there as an outside repairman. She went on to make further determinations :

"On the basis of my findings 1 to 8 above, I found that,

9.	The Appellant was working on the computer, presumably to repair it.
10.	Inter alia, he was working with the Adaptee Toast 4.1 software.
11.	I was satisfied beyond reasonable doubt having heard all the evidence that the Appellant was fully aware of the fact that this software was used to copy/burn discs.
12.	I was satisfied that the Appellant was not present at the shop as a repairman.
13.	I was satisfied that a burnt cd was found in the tray at the time of the raid."

Clearly the reference to tray and its contents was to the tray of the computer tower.

9.In reliance on those findings she concluded :

"... I was satisfied that by reasons of his working on the computer with the Adaptee Toast 4.1 software, the Appellant was in possession of articles knowing or having reason to believe that they are used or intended to be used to make infringing copies of copyright work for sale or hire or for use for the purpose of, or in the course of trade or business."

She convicted him of Charge 2.

10.However, she acquitted the appellant of Charges 1 and 3, of that she said :

"I found the other two charges not proved as at the time of the raid the actual burning of discs could not take place, and unlike the two co-defendants no admissions were made by the Appellant."

11.Those charges, Charges 1 and 3, related to 4 CD-Roms which were said to be infringing copies of copyright works, namely literary works - three of them were Adobe Photoshop 7.0 and one Adobe Illustrator 10. Charge 1 was an allegation of possession for the purpose of , or in the course of, any 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 sections 118(1)(d) and 119(1) of the Copyright Ordinance, Cap.528.

12.Charge 3 was an allegation that the appellant and those charged with him had made those 4 CD-Roms.

PERFECTED GROUNDS OF APPEAL AGAINST CONVICTION

Ground 1

13.By this ground, complaint is made that the appellant was found to be in possession of the equipment on the basis that followed necessarily because he was "working on the computer, presumably to repair it."

14.Mr Mitchell-Heggs developed that ground. He submitted that just because someone is working on a computer does not mean that he is in possession of it and its software. Key to this issue is the appellant's status - was he merely an "outside repairman" or not?

15.The learned magistrate's finding that the appellant was in possession of the stipulated articles knowing or having reason to believe that they are used or are intended to be used to make infringing copies of copyright works for sale or hire or for the purpose of, or in the course of trade of business is to be viewed in the context of all the evidence. In particular, that :

(1)	in the tray of the computer there was a CD infringing CD-Rom, an infringing copy of "Adobe Photoshop 7.0", that is, the most current version of that computer software; and
(2)	the programme actually running on the computer at the time of the raid was Adaptee Toast 4.1, a programme used for duplicating/copying/burning of discs.

16.Those findings are to be considered in the light of the learned magistrate's finding that whilst the appellant was working on the computer "presumably to repair it", he was not there as a repairman. That is, the learned magistrate rejected the appellant's evidence that he was an employee of an outside company who had been merely sent to the shop a few minutes before the arrival of the Customs and Excise officers to repair the equipment.

17.In my judgment, in those circumstances ,the learned magistrate was entitled to conclude, which she stated she did, that she was satisfied that the appellant was in possession of the equipment with the requisite mens rea. This ground of appeal fails.

Ground 2

18.By ground 2, complaint is made that the learned magistrate misdirected herself in respect of the issue raised by the testimony of the appellant that he was an "outside repairman".

Ground 2(iii)

19.It is complained that the learned magistrate gave no reason for rejecting the appellant's defence in this respect. However, with respect it is clear that she did. The only evidence before the learned magistrate at the trial in respect of the assertion that the appellant was an outside repairman was the appellant's bare assertion to that defence. Also, it is to be noted, as I have indicated already, that emerged only in cross-examination of the appellant, it was not put to the prosecution witnesses and it was not led in evidence-in-chief. Of that issue, the learned magistrate said this in addition :

"... There was no documentation found at the scene by the prosecution witnesses, which indicated that the Appellant was there as a repairman. No documentation was provided by the Appellant in court as to his employment or indeed any job related papers."

20.That reasoning process itself is the subject of complaint by ground 2(i). It is said that the expectation that the court be provided with documentary support of the appellant's testimony that he was there as an outside repairman was "a somewhat unrealistic expectation in the nature of this case".

21.Why? One asks oneself. The appellant was arrested on 9 May 2002 was not tried until 6 and 7 October 2003. He had 17 months to prepare for trial. The evidence needed to support his bare assertion and testimony was of the most simply kind, be it documentary or the oral testimony of an employer. Nothing whatsoever was forthcoming.

Conclusion

22.In my judgment, in all the circumstances, the learned magistrate was entitled to reject the appellant's testimony that he was on the premises only as an "outside repairman". This ground of appeal fails.

Ground 3

23.By this ground, complaint is made that it was unreasonable and unrealistic for the learned magistrate to conclude that the appellant was "working with the Adaptee Toast 4.1 software if he was simply trying to repair the computer."

24.It is clear that this finding is directly relevant to the issue of the defendant's knowledge of the capabilities, use or intended use of the equipment. It is to be noted that the very next finding made by the learned magistrate bears that out. She found that :

".. the Appellant was fully aware of the fact that this software was used to copy/burn discs."

This ground of appeal fails.

Ground 4

25.By this ground, complaint is made that the appellant's acquittal on Charges 1 and 3 are inconsistent with his conviction on Charge 2. As counsel advancing this ground would be aware this is difficult ground of appeal upon which to succeed.

26.In her Statement of Findings, the learned magistrate said :

"I found the other two charges not proved as at the time of the raid the actual burning of discs could not take place, and unlike the two co-defendants no admissions were made by the Appellant."

Charges 1 and 3 related to the 4 CD-Roms only. They were alleged to be infringing copies. Charge 3 alleged the appellant together with his co-accused made those 4 CD-Roms. Charge 1 alleged that the appellant, jointly with his co-accused, possessed them for the purpose of trade etc.

27.Given that the copying/burning equipment was defective and there were no evidence of how long the appellant had been on the premises it is readily apparent why the learned magistrate acquitted the appellant in respect of Charge 3.

28.In respect of Charge 1, three of the offending CD-Roms were on the counter of the shop, however, one of the CD-Roms was actually in the tray of the computer on which the appellant was actually working. In respect of that CD-Rom, not the others, the learned magistrate's acquittal of the appellant appears to be generous. Nevertheless, I am satisfied that there is nothing in the acquittal of the appellant of Charges 1 and 3 which in any way undermines his conviction in respect of Charge 2. This ground of appeal fails.

CONCLUSION

29.Notwithstanding the persuasive arguments advanced on behalf of the appellant by Mr Mitchell-Heggs who, with considerable ingenuity, has found everything that could possibly be advanced on the appellant's behalf I am satisfied that there is no merit in the grounds of appeal against conviction. This appeal is dismissed.

Representation:

Ms Grace Chan, SGC, of the Department of Justice, for the Respondent

Mr A.B. Mitchell-Heggs, instructed by Messrs Ong & Chung,for the Appellant