HKSAR v. Lam Man Kit

HCMA001330/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1330 /2000

(On appeal from TWMC 385 of 2000)

____________________

____________________

Coram: Deputy Judge Barnes in Court

Dates of Hearing: 28 February 2001, 8 May 2001

Date of Judgment: 24 May 2001

______________________________

JUDGMENT

______________________________

Introduction

1.The Appellant LAM Man Kit was convicted after trial before a magistrate of one charge of offering for sale infringing copies of copyright works for the purpose of trade or business without the licence of the copyright owner, contrary to Section 118(1) (e) (ii) and Section 119(1) of the Copyright Ordinance, Cap. 528. He was sentenced to 12 months imprisonment. He now appeals against conviction and sentence.

2.The appeal was originally set down for hearing on 8th May this year. I acceded to the Appellant's application to have the matter expedited and heard the appeal on 28th February. The matter could not be concluded that day as the Respondent applied to have further transcript put before me. I therefore adjourned the hearing to its original hearing date.

Brief facts

3.The prosecution case disclosed that on the material day, Customs officers mounted a counterfeit copyright operation at shop A5, G/F Tsuen Fung Centre. The Appellant and another male were seen seated at either end of a small table. On the table was a small box used as a cash box. The Appellant was observed to have collected money from the box on two occasions. Customers were seen to choose discs before going to the table where either the Appellant or the other male were seated. The discs were then collected by the male or the Appellant who would then pack them into a plastic bag. The observation lasted about 5 minutes when warrants were produced. The Appellant and the other male was both arrested and exhibits seized. None of the customers were intercepted.

4.The Appellant's contention that he had gone to the shop in question as a customer was disbelieved by the learned magistrate. She also rejected the evidence of the watchman and the Appellant's friend to that effect. She convicted the Appellant accordingly.

Grounds of appeal on conviction

5.Mr. Grounds, counsel for the Appellant, advanced the following grounds of appeal:

(a) The learned magistrate erred in a law in that she wrongly reversed the burden of proof;

(b) The learned magistrate erred in law in that she wrongly failed to consider or direct herself upon the issue of whether the Appellant made any offer for sale of infringing copies;

(c) The conviction recorded against the Appellant was unsafe and unsatisfactory.

Reverse of burden of proof

6.Mr. Grounds complained that the learned magistrate had reversed the burden of proof in that she has evaluated the evidence of the Appellant and his witnesses before considering the prosecution's case against the Appellant. Further, in view of the learned magistrate's comment on the 'quality' of the evidence of the prosecution witnesses as expressed on page 4 of her Statement of Findings, it was of vital important that the learned magistrate should not have evaluated the defence case first. The part referred to by Mr. Grounds were as follows:

"It is a general criticism that can be made of most customs officers that they make inadequate notes and particulars. Often cases take up to a year or more to get to trial. This case took 16 months to finally come to trial. The result of the inadequate notes and statements is that customs officers are not as good and as helpful witnesses as they should be, and sometimes they appear to be downright incompetent."

7.It is indeed correct that the learned magistrate mentioned her consideration of the defence evidence first. She said on page 4 of her Statement of Findings (page 19 of the Appeal Bundle):

"Having rejected the Appellant's evidence I had to carefully consider the evidence of PW1 and PW2......................"

8.The learned magistrate is a very experienced magistrate and she has been dealing with countless number of cases day in and day out. It is indeed a very bold assertion that such an experienced magistrate would make such a fundamental error. In delivering her verdict in court, the learned magistrate said this (page 30 of the Appeal Bundle):

"You are before the court on one count of offering for sale infringing copies. The prosecution has to prove the charge against you beyond reasonable doubt and so that I am sure. If there is any doubt in my mind, you have to be given the benefit of it. I have also borne in mind that there is no burden on you to prove anything.

In determining the facts, I have to carefully consider the evidence of all of the witnesses, the contents of their evidence and the manner in which it was given.

If I can deal, first of al, with your two witnesses......" (Emphasis supplied)

It is quite clear that the learned magistrate had not reversed the burden of proof. She had merely chosen to express her view on the evidence of the defence first. I find no merit on this ground.

Offering for sale infringing copies

9.Mr. Grounds relied on HKSAR V CHU KAI WA, HCMA 670/1999 and HKSAR V MAK Kwok-keung, HCMA956/1999 in his submission that the Statement of Findings of the learned magistrate was far from satisfactory. She did not set out in her Statement of Findings the salient facts she found established to support the charge of offering for sale. There was no mention of where the infringing copies were from; no evidence that all discs found in the shop were infringing copies; no evidence as to the percentage of such infringing copies among other non-infringing copies inside the shop; and no evidence that the discs purchased by the customers were infringing copies. Although there was evidence regarding posters or advertisement and layout of the shop, the learned magistrate had not made any actual findings of facts in that regard. Mr. Grounds relied on Fisher v Bell, [1960] 3 WLR 919 and pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd. [1953] 2 WLR 427 to support his contention that the learned magistrate had never addressed her mind to the issues of offer for sale, invitation to treat and exposing for sale (if the infringing copies were indeed exposed).

10.Mr. Grounds conceded that it is not necessary for a magistrate to set out everything in details, he relied on the dicta of O'Connor J. in LAM King-ming, Criminal Appeal 601/1979 and submitted that a proper Statement of Findings should be in line with what O'Connor J. had said:

"The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case. The magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty."

11.Ms. Chan on behalf of the respondent submitted that there was evidence before the learned magistrate to the effect that the shop was about 50 square feet, each of the shop's three walls were racks holding suspected pirated discs, the discs production and publication were rough and the covers not clear. Further the reference of customers going to either the Appellant or the other male who then collected money and placed discs in the bag. She submitted that there was ample evidence before the learned magistrate that there was offering for sale going on. Ms. Chan submitted that learned magistrate was aware of the inconsistency in the evidence of PW1 and PW2 regarding the issue of 'touting', the learned magistrate nevertheless found both PW1 and PW2 honest and truthful and accepted their evidence. The evidence of the prosecution witnesses showed that the Appellant was acting in concert with the other male so whether the Appellant did any actual touting was immaterial. The learned magistrate was entitled to find offering for sale took place on the evidence of touting by the other male.

12.Ms. Chan further relied on R v LEE Chi-yan, MA No.672/1993 and submitted that if there was no or not enough evidence to support a charge of offering for sale, I could substitute the offence with one of 'exposing for sale' contrary to same section of the Copyright Ordinance, if I consider that the magistrate must have been satisfied on the facts which proved the appellant was guilty of the other offence.

13.I am rather concerned with the apparent lack of finding by the learned magistrate regarding the so-called "touting". In this respect the learned magistrate said, again on page 4 of her Statement of Findings:

"There was a major difference in the evidence of PW1 and PW2. PW1 makes no comment of hearing any touting from either D2 or the Appellant, whereas PW2 states that they both touted in loud voices more than once. It is to be noted that in his notebook PW2 had made no reference to the appellant touting, because, as he explained, he was not responsible for his arrest. So he was giving this piece of evidence in relation to the appellant form a memory some 16 months before. PW1 could not recall whether there was or was not any touting, but PW1 was responsible for the appellant only. This is an important piece of evidence, which should have been noted. I accepted the evidence of PW1 as to why customers were not intercepted as they left Shop A5 very persuasive. On a (sic) operation if customers were being stopped this would clearly put shop keepers on notice. Having considered all these matters I found both PW1 and PW2 to be truthful and honest witnesses. I am satisfied that both PW1 and PW2 saw D2 and the Appellant selling VCDs etc. that day in Shop A5. There was no dispute that the VCDs etc were in breach of copyright." (Emphasis supplied).

14.The fact that a witness is truthful and honest does not necessarily mean that his/her evidence is reliable. The learned magistrate did not resolve the question of whether "touting' did take place. The appellant was charged with offering for sale. Whether he (or the other arrested person for that matter) had touted, particularly loudly, for business is an important issue to be considered. The inconsistency casts doubt on the reliability of the prosecution witnesses, particularly bearing in mind her criticism of these two custom officers being "not as good and as helpful witnesses as they should be, and sometimes they appear to be downright incompetent".

15.I am in total agreement with O'Connor J. as to the requirement of a Statement of Findings. With the greatest respect to the learned magistrate, I don't think she had set out the salient points in her Statement of Findings. There was no mention of the layout of the shop except its size, how the VCDs were displayed inside; whether all the VCDs on display or a large extent thereof were infringing copies; what was written on the posters or advertisements; what were the words said which amounted to touting; and who did the touting, if anyone. These matters should have been mentioned in the Statement of Findings so that one can see on what basis the learned magistrate had come to the conclusion that the prosecution had proved all the necessary elements of the offence charged.

16.Such a requirement is more pertinent under the present climate when the basic appeal bundle does not automatically include a transcript of all the evidence adduced. If magistrates do not set out such salient points, and as a result of which the appellate court needs to re-visit the evidence adduced, it is a waste of time and resources.

17.Since there was no evidence before the learned magistrate whether the discs sold to other customers were infringing copies, and there was no evidence as to where the infringing copies were seized from, with the reasons I have already expressed, the Appellant's conviction on offering for sale is unsafe and unsatisfactory and must be quashed. With no evidence and no findings of where the infringing copies were displayed, and with the uncertainty of the reliability of the prosecution witnesses, I am not prepared to substitute the offence of exposing for sale as urged by the Respondent.

18.It is not necessary for me to consider the appeal on sentence. The conviction is quashed and sentence set aside.

Representation:

Mr. Christopher Grounds, instructed by Messrs. Lee & Chow for the appellant

Ms. Grace Chan SGC for the HKSAR respondent