Ngai Kwong Industrial Co Ltd and Another v. Lee Kwok Kay t/a Metro Corporation

HCA006564/1984

1984, No. 5966

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

BETWEEN

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Coram: Hon. Liu J. in Court

Dates of hearing:  28-30 April, l-2, 5-9, 12-16, 19-23, 26-30 May, 2-6, 9-10, 12-13, 17-19, 23-27, 30 June, 1-2, 4, 7-11, 14-18,21-25, 28-31 July, 1, 4-7, 11-13 August, 1986

Date of delivery of judgment: 27 October 1986

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JUDGMENT

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1. These consolidated proceedings are on alleged copyright. The plaintiffs also claimed in passing-off. That claim was abandoned at the trial. A late attempt was made to further amend the Statement of Claim with a view to enabling the 2nd plaintiff to sue on the alleged copyright. The plaintiffs' application so to amend was allowed, but leave accordingly given was, in effect, not upheld by the Court of Appeal, with the result that the 2nd plaintiff's claim in these consolidated actions was dismissed. The 1st plaintiff was left as the sole claimant. Thereafter, the parties rallied to the assistance of the court by agreeing to the following as a fact, viz. :-

"If copyright subsists in the drawings sued upon in this action, both legal and equitable title to that copyright would vest in the 1st plaintiff, Ngai Kwong and nobody else. "

It was confirmed that the agreement was reached for all purposes in the entire consolidated proceedings.

2. There are two defendants in these consolidated actions. The 2nd defendant who had acquired a controlling interest in the 1st defendant limited company shortly before the institution of these proceedings, claims to be the owner of copyright in two packagings. These packagings were used by the 2nd plaintiff in its supply of hair-dryers to or to the order of the 2nd defendant. The plaintiffs did not admit the 2nd defendant's claims of copyright or his allegations of infringement. However, the 2nd defendant's counterclaim on alleged infringements of his packaging copyright was withdrawn by consent with no order as to costs upon the plaintiffs verifying in evidence that none of these packagings had been used other than for shipments to the 2nd defendant or his nominees.

3. Therefore, these proceedings solely concerned with the 1st plaintiff's alleged copyright in drawings. These drawings relate to hair-dryers and their component parts. They could be conveniently divided into drawings for big hair-dryers and drawings for small hair-dryers. Of the twenty-eight drawings ultimately involved, fifteen relate to the big hair-dryers and thirteen to the small hair-dryers. Out of the fifteen drawings for the big hair-dryers three are claimed to have been lost. The 1st plaintiff claims that copyright subsists in all these twenty-eight drawings. If the 1st plaintiff succeeds in establishing its alleged copyright, then by agreement, the 1st plaintiff is to be regarded as the legal and equitable owner of it. The 1st plaintiff claims that the defendants infringed its alleged copyright in these drawings. An injunction is sought against both with consequential relief including an enquiry as to damages and costs.

4. The 2nd defendant is the sole proprietor of Metro Corporation. He and his wife now own Kenic Plastic Factory Limited, the 1st defendant. Kenic Plastic Factory Limited was incorporated in 1980 with three equal shareholders in the person of the 2nd defendant, his younger brother and brother-in-law, the latter being in charge. The other two shareholders left the company in August 1984 just before the commencement of these actions on the following 1st September and 24th September. I shall call Metro Corporation, "Metro" and Kenic Plastic Factory Limited, "Kenic". The 2nd plaintiff, Hiraoka & Co. (Hong Kong) Ltd. was the supplier of hair-dryers to Metro. I shall call the 2nd plaintiff "Hiraoka".

5. The contract sales of hair-dryers by Hiraoka to Metro took place over a period in 1982, from April to November. In April/May 1982 Metro supplied Kenic with moulds with instructions to copy the 1st plaintiff's hair-dryers, big and small. At the time when preparation was being made and moulds being ordered by Metro for such copying, Metro continued to buy from Hiraoka for fear that Kenic's production might not be up to expectation.

6. As for Hiraoka's hair-dryers, the 1st plaintiff, Ngai Kwong Industrial Company Limited, had been asked to make drawings for hair-dryers. The twenty-eight drawings sued upon were part of the drawings so made, from which steel moulds were produced for the manufacturing of various component parts of Hiraoka's hair-dryers. I shall call the 1st plaintiff "Ngai Kwong".

7. There were three personalities responsible for the making of these twenty-eight drawings. They are the late Mr. Ohto, Mr. Bota and Mr. K.T. Choy, a11 staff of Ngai Kwong. Evidence led, which I accept, has established that each of them was a qualified person for the purposes of the Copyright Act 1956 which is applicable to Hong Kong. During this trial, Counsel for the defendants accepted that they were all qualified persons. These persons have also been proved to be the respective authors of the twenty-eight drawings. It matters not whether there have been "publications". Nothing turns on primary infringement and secondary infringement, but knowledge of or inadequate inquiry as to the subsistence of Ngai Kwong's alleged copyright would obviously be relevant at least in the consideration of the defendants' plea of innocence. Ngai Kwong's claims is that these drawings enjoy originality and that copyright subsists in all of them. Mr. Ohto is dead, and for his drawings, Ngai Kwong also relies on the presumed originality under section 200)(a).

8. The defendants admit copying the hair-dryers supplied to Metro by Hiraoka in 1982. Ngai Kwong complains that such copying by the defendants was a reproduction of a substantial part of each of these twenty-eight drawings. Thus, it is alleged, the defendants infringed the copyright of Ngai Kwong in these twenty-eight drawings sued upon.

9. It is not in dispute that reproduction of an article made from a drawing in which copyright subsists amounts to an infringement of that copyright. This method of reproduction is known as "reverse engineering" whereby a drawing is copied through the copying of a product made from it.

10. The defendants say that the copying of the 1st plaintiff's hair-dryers supplied by Hiraoka to Metro in 1982 was no reproduction of the twenty-eight drawings or any of them because Ngai Kwong had not itself manufactured its products from or according to any of these drawings. The thrust of the defence is that after all is said and done, Ngai Kwong has still failed to establish that it had manufactured these hair-dryers in 1982 from these twenty-eight drawings. The defendants also maintain that there is sufficient evidence to suggest that Ngai Kwong had not in fact followed these drawings. The hair-dryers and nearly all their component parts came from steel moulds. Therefore, in effect the defendants claim that the relevant steel moulds were not made from or according to any of these twenty-eight drawings or that the evidence adduced has not discharged Ngai Kwong's burden in proving that the moulds did come from the drawings. Further, the defendants claim that there is no or no sufficient evidence that the products as they were supplied in 1982, with all the alleged refinements, modifications and variations, were or were still reproductions of a substantial part of each of these drawings.

11. Whether these moulds did come and have been proved to have come from the relevant drawings, the defendants put Ngai Kwong to strict proof that these drawings were original. That is the threshold question.

12. Only after all is well proven may the Court readily conclude on the defendants' admission of ownership that the defendants infringed the copyright drawings of Ngai Kwong.

13. Against any finding of infringements, the defendants would invoke what has been described as the section 9(8) defence under the Copyright Act 1956.

14. Finally, in addition to infringement damages, conversion damages are sought. As for that, the defendants call in aid the plea of innocence under section 18(2)(b) and (c) of the Copyright Act 1956. In paragraph 12 of the Re-Re-Re-Amended Statement of Claims, Ngai Kwong includes a claim for additional damages pursuant to section 17(3) of the copyright Act 1956 on account of all material circumstances, including the defendants' flagrant disregard of Ngai Kwong's copyright, any inequitable benefit arising therefrom and the want of effective relief otherwise available to Ngai Kwong.

15. On behalf of the defendants it was submitted that its plea of innocence would disentitle Ngai Kwong's claim for conversion damages and that there was no warrant for any additional damages.

16. A number of sections of the copyright Act 1956 need be referred to: In effect, section 3(2) and (3) provide that "copyright shall subsist, subject to the provisions of this Act, in every original artistic work. " Publication of the drawings has been conceded as being immaterial. Section 3(1)(a) defines "artistic work" as meaning, inter alia, "drawings" "irrespective of artistic quality". By section 48(1), the word "drawing" includes "any diagram, map, chart or plan". Section 4 permits an employer to take advantage of the copyright in drawings of his employees. By section 1(1), copyright means the exclusive right to do or cause to be done certain acts. One of such acts is a reproduction of "the original artistic work" in any material form. See section 3(5). To be more precise, paragraph (a) of that subsection prohibits any unauthorized reproduction of "the work in any material form". "Reproduction" is itself defined by section 48(1) in the case of an artistic work as including "a version produced by converting the work into a three-dimensional form". "Reproduction" is qualified by section 49(1) which widens its scope to include a reproduction of "a substantial part". The meaning of "reproduction" has therefore been extended to embrace less than total duplication. Thus, it need not be an exact replica to infringe.

17. Mention has been made of the section 9(8) defence, the plea of innocence under section 18(2)(b) and (c) as well as additional damages under section 17(3). These subsections are set out below for easy reference: -

"S.9(8)         The making of an object of any description which is in three dimensions shall not be taken to infringe the copyright in an artistic work in two dimensions, if the object would not appear, to persons who are not experts in relation to objects of that description, to be a reproduction of the artistic work. "

"S.18(2)         A plaintiff shall not be entitled by virtue of this section to any damages or to any other pecuniary remedy (except costs) if it disproved or admitted that, at the time of the conversion or detention in question, -

"Plate" includes, inter alia, any block, mould or other appliance. See section 18(3).

"S.17(3) Where in an action under this section an infringement of copyright is proved or admitted, and the court, having regard (in addition to all other material considerations) to -

(a) the flagrancy of the infringement, and

(b) any benefit showed to have accrued to the defendant by reason of the infringement, is satisfied that effective relief would not otherwise be available to the plaintiff, the court, in assessing damages for the infringement, shall have power to award such additional damages by virtue of this subsection as the Court may consider appropriate in the circumstances. "

18. I should now set the scene in which these disputes arose. Ngai Kwong and Hiraoka had worked as a team with Ngai Kwong as the manufacturing arm and Hiraoka as the sales front. Mr. Ishihara is the present director of Hiraoka which is a subsidiary of the parent company of the same name in Japan. He had worked in the parent company in Tokyo and its various overseas establishments before he joined Hiraoka, Hong Kong in 1972 as Acting manager of the Electric Appliances Department. He has since the end of 1983 or the beginning of 1984, been one of its directors. Mr. Nakamura is the Chief Engineer of Hiraoka, supervising quality control and safety requirements of its products. He joined Hiraoka in June 1974 on a transfer from the parent company in Tokyo. Mr. Nakamura is an electronic engineer. There was then one other engineer in the company which has now a larger contingent of three engineers and five inspectors.

19. At the material time, Ngai Kwong had as its employees, Mr. Ohto, Mr. Bota and Mr. K.T. Choy. Mr. Ohto died in June or July 1978 in a traffic accident. He was the chief engineer of Ngai Kwong. He received a fairly substantial salary of $6,000 per month in 1975. Before Mr Ohto joined Ngai Kwong, he was chief engineer of another manufacturer. He had good experience and knowledge in hair-dryers and he was an excellant draughtsman. Mr. Bota joined Ngai Kwong as an eingineer, working principally on hand-made samples and moulding and supervising production and design. He served with several companies in Japan before he came to Hong Kong, and he had acquired drawing technique in his formative school years and from his past experience. He left Ngai Kwong in May 1979. Mr K.T. Choy is a project engineer. He has a degree in Mechanical Engineering from a Taiwan university. He joined Ngai Kwong as a replacement of Mr. Bota in early 1979. He had training for mechanical drawing and design in university. I do not propose to dwell on the curriculum vitae of each of these gentlemen. Suffice it for me to say that I accept them as autors of the respective drawings and "qualified persons" under the copyright Act 1956.

20. Hiraoka contracted to sell to Metro big and small hair-dryers, being part of its range of merchandise. It has been described in great detail as to how these hair-dryers came to be designed and manufactured. I have no hesitation in accepting the evidence given for and on behalf of Ngai Kwong and Hiraoka concerning the design, development and production of these hair-dryers. Hair-dryers are commonplace household goods, but I am satisfied that in conjunction with Ngai Kwong, Hiraoka endeavoured to and did produce their own distinctive design for competitive performance. The crux of the matter does not lie in such distinctive and competitive qualities. The real consideration is whether the drawings enjoy any originality for copyright to subsist. The drawings in these consolidated proceedings would not be protected under the law of copyright unless they are original work. In the field of copyright, "originality" arises when the author of the work has "expended a substantial amount of his own skill, knowledge, creative labour, taste or judgment". Being original does not mean that it has to be unique or unprecedented or something new compared with existing work. Copyright law does not protect ideas. It need be original only in a sense that in the ultimate analysis "it is all the author's own work" or it "originates from the author". See University of London Press Ltd. v. University Tutorial Press Ltd.⁽¹⁾ Obviously, not every part of the work has to be original but "enough fresh work" will have to be done so that when the work is viewed "as a whole" the amount of skill, knowledge, creative labour, taste or judgment involved should be substantial. The necessary amount of skill, labour etc. is inevitably a question of degree and to be decided as a question of fact. See G. A. Cramp & Sons Ltd. v. Frank Smythron Ltd.⁽²⁾ Mere copying from any existing drawing cannot be original. For any drawing including a redrawn, it is always the question "whether sufficient skill or labour or talent has gone into it to merit protection under the Act." See Allibert S. A. v. O'Connor & Anr. ⁽³⁾ and and L. B. (Plastic) Ltd. v. Swish Products Ltd.⁽⁴⁾. Preparatory work, sufficiently related, to the drawing, may be taken into account. Copyright offers protection against pirate copying of a drawing irrespective of its qualities, and one must not think in terms of novelty as under Patent or eye-appeal as under the law of Registered Design. It has often been said that the test for the skill and labour involved in copyright originality is a low one.

21. I have been exhaustively assisted by counsel. I do not propose to delve into specifics. There is no doubt in my mind that the works in the drawings in question are original so as to attract copyright protection in the sense I have understood. As for the drawings for which the late Mr. Ohto was responsible, section 20(5)(a) of the copyright Act 1956 would also apply. That subsection presumes the work of a deceased author to be an original work until the contrary is proved. In this case, this statutory presumption has not, in my view, been rebutted.

22. It was strenuously urged on behalf of the defendants that not only had Ngai Kwong failed to establish these drawings as having been used in the making of the steel moulds, but the evidence pointed in the other direction i.e. that they had not been so used. Much emphasis was sought to be placed on the words "same as Conic" in the region of the switch openings in Drawing "B1". It was suggested that "same as Conic" was indicative of the source of at least that part of the drawing or that it had cast doubt as to whether that part or the rest of Drawing "B1" did emanate personally from Mr. Ohto. Drawing "B1", so it was further submitted, together with the other indicia in this case reinforces counsel's contention that in these highly ambiguous circumstances, no presumed originality by section 20(5)(a) could stand.

23. Mr Ishihara is unable to offer any assistance for the presence of "same as Conic" in Drawing "B1", but there is no evidence that he had instructed the late Mr Ohto to copy from conic. We know not what the deceased author meant by the use of these words. If he had meant to take from another source i.e. conic, we know not precisely which particular part or parts of "B1" came or was to come from conic and what quality and extent was to be so borrowed. For instance: Was Conic to be copied in function, shape, dimensions, arrangement or collocation? We cannot even be all that sure that the words" same as Conic" refer to the curved top and bottom edges in pencil. Moreover, the mould-maker was never shown another hair-dryer or drawing for the switch.

24. Each drawing must be looked at as a whole. Incorporation of commonplace material or the borrowing of a part from another source would not by itself deprive the drawing, viewed as one, of its originality. Of course when only negligible work is done in putting together or arranging commonplace features, no copyright will accrue, though collocation may attract copyright. See Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.⁽⁵⁾. In a slightly different context, Lord Reid advised at page 277 in the same case- that it was not "the correct approach" to dissect the subject--matter into segments and ask oneself whether each segment taken by itself could be "the subject of copyright", one should "determine whether the plaintiffs' work, as a whole, is 'original' and protected by copyright". At page. 290, Lord Delvin also emphasised the necessity of assessing "the value of the work as a whole".

25. It is just as convenient to reproduce here the remainder of a passage in the speech of Lord Pearce on copyright and infringement relevant to incorporated commonplace features. Lord Pearce spoke of compilation of a football coupon, but the underlying principle would seem to be the same for drawings.

"The reproduction of a part which by itself has no originality will not normally be a substantial part of a copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. They afford no justification, in my view, for holding that one starts the inqiry as to whether the copyright exists by dissecting the compilation into component parts instead of starting it by regarding the compilation as a whole and seeing whether the whole has copyright. It is when one is debating whether the part produced is substantial that one considers the pirated portion on its own. "

26. In the circumstances, this phrase "same as conic" is just too vague even for identifying any or any material transplant so as to rob the entire drawing of its originality. It is simply too obscure for drawing any conclusion other than that a reference had been made to Conic. In my view, these words cannot by their mere presence, rebut the statutory presumption of originality.

27. Drawing "B1" was made by the late Mr Ohto. Mr Ohto's name was not on the drawing but that was, according to Mr Ishihara, because Mr Ohto was then the only engineer in Ngai Kwong. Mr Ohto discussed the drawing with Mr Ishihara for several days. This drawing took Mr Ohto about a week to make. There were discussions on various component parts between Mr Ohto and Mr Ishihara. Mr Bota described this drawing as fairly complicated. This  Drawing "B1" forms a set of drawings with "B2" and "B3", but I need not refer to any other drawing in the set for understanding each of them. As can be seen from all these efforts of Ngai Kwong and Hiraoka in preparation, most of the drawings were made for mould making with the exception of some general arrangement drawings. "B1" has the appearance of general assembly drawing but it provides workable specifications, particularly in respect of the air-intake grille. The arrangement and the layout appear to have been decided on and drawn after much deliberation. In my view, substantial amount of skill, knowledge, creative labour, taste and judgment had been involved in the preparation and making of this Drawing "B1". It possesses originality for copyright.

28. Apart from the words "same as Conic", the court was constantly reminded to bear in mind the commonplace features of hair-dryers and the reference made to an early version of Hiraoka/Ngai Kwong such as the GE Pro 6 stand. See "E6". Mr Ishihara further conceded that the finger grips were almost the same as GE Pro 5 and Pro 6 and that the shape of the handle was one of the distinctive, if not the most distinctive feature of the hair-dryer. The defendants also rely on the various disparities between the products and the drawings. Taking all into consideration, in my opinion, the presumed originality has not been rebutted and further on all the evidence "B1" has been established as original.

29. As a matter of fact it would be redundant for me to refer in any great detail to the relevant evidence for these drawings. There were invariably discussions, deliberations, and except for "B22" in all cases, a significant amount of time was taken. In each case, "B22" aside, a fair degree of professional skill and competence was involved and the drawings were made after a great deal of effort. Apart from "B22", it is impossible, in my view, to suggest that in any one of these drawings there were not enough personal endeavours to attract copyright in the sense as "originality" is to be understood under the copyright Act 1956. There is ample evidence for me to arrive at and I have indeed reached, the conclusion that apart from "B22" each of these drawings is original and that copyright subsists in each. Insofar as any of these drawings was the late Mr. Ohto's, the presumed originality has also not been rebutted. The agreed fact is that if copyright subsists in these drawings, then the 1st plaintiff, Ngai Kwong, has throughout been its legal and equittable owner.

30. Having stated my conclusions, I should give a running commentary of my views on the other drawings: Drawing "B2" is a drawing for the rear housing of the big hair-dryer. Again, there were discussions for over one to two days between Mr. Ishihara and Mr. Ohto. The drawing must have obviously taken some time from start to finish, and Mr. Ishihara estimated it to be 2 days. He approved it after completion. Some commonplace features had been incorporated though mostly readjusted, and Mr. Ishihara testified that to his knowledge, there were no other hair-dryers having exactly the same features or combination of features as those in the big hair-dryers of Hiraoka. Hiraoka's big hair-dryers were specially designed for keen competition both in appearance and performance and for easier manufacturing. Against this background, Mr. Bota considered this drawing "B2" as a very complicated one. There can be no doubt that this drawing is original and that copyright subsists in it.

31. As for drawing "B3", there were also discussions between Mr. Ishihara and Mr. Ohto for incorporating some special features. The estimated time was one day. Again Mr. Bota considered this a vary complicated drawing. "B3" is an original work.

32. Drawing "B4" was also made by the late Mr. Ohto. It is a drawing of the heater barrel and the concentrator. Mr. Ishihara and Mr. Ohto set out to improve the fitting of these two component parts and introduce a curved mouth to the concentrator as a safety factor. Mr. Ohto took time to prepare and make this drawing. Dimensions are given as in the other drawings. Evidently, much skill and judgment had been put into its preparation and making. In my view, this drawing, like the previous ones I have considered, is original. This drawing should be viewed as a whole with the detachable concentrator for the heater barrel. There is no compelling reason for the heater barrel and the concentrator to be judged only conjunctively and not separately as they may be treated as individual objects, but nothing turns on this.

33. Drawing "B5" is for the switch cover and the hang-up ring. The sketches relating to each of these two items have to be considered quite separately. They do not obviously relate to one another except as component parts of one hair--dryer. Again for the originality of each, the section 20(5)(a) presumption arose. In addition, there were discussions in which Mr. Ishihara expressed his concern for the sharp corners in the protruding part of the switch cover. Clearly, the drawing itself like the others, reflects much skilled deliberation in the designing and preparation of the sketches. The two groups of sketches on "B5" are, I find, both original on the statutory presumption alone as well as on the whole of the evidence.

34. "B11", this is a drawing of the fan by the late Mr. Ohto. Consequently the statutory presumption under section 20(5)(a) also arose. I need not really repeat this section and its effect for Mr. Ohto's other drawings every time. There were discussions between Mr. Ishihara and Mr. Ohto who took time in preparing and completing this drawing. According to Mr. Ishihara, the design was the own design of Mr. Ohto. I conclude that "B11" is original.

35. Drawing "B12" is a drawing for the stand made by Mr. Ohto. In a Supplemental contract, Exhibit E6, for mould-making, there was a reference to GE Pro 5 and Pro 6 accessories. Ngai Kwong and Hiraoka made no specific disclosure in respect to this reference. Mr Ishihara explained that he had forgotten about the reference to the stand in Exibit E6. It is true that there was no mention of the plaintiffs having an earlier stand to work from. In addition, Mr. Ishihara erroneously referred to the round-shaped stand, Exhibit P13 instead of the square-shaped stand, P16. Counsel for the defendants submitted that Ngai Kwong had not, in evidence, satisfactorily excluded the possibility of copying from these earlier versions. It was contended that the presumption of originality was displaced and that Ngai Kwong failed to establish originality upon the balance of probabilities. The stand as one of the accessories of the GE Pro 5 and Pro 6 series is different from the stand depicted in "B12". It would serve no real purpose for the plaintiffs to attempt to conceal information relating to these stands. It was also debated whether the top middle sketch in "B12" was a plan viewed from the top or underside. I am satisfied that it is an aerial view. It was unlikely, so counsel suggested, that "B12" was intended to be a working drawing. It was also criticised that the drawn clip did not give adequate information or dimensions and that it gave the wrong size and shape for at least one of those clips. It was sought to be explained that the drawn clip was not to be interpreted as an individual depiction of any one clip, but the evidence is unclear as to the purpose, if any, this sketch was meant to serve. Mr. Lee, the stand mould-maker took that sketch as one clip, and Mr. K.T. Choy interpreted it as another clip. It is unsatisfactory. Counsel for the defendants submitted that the court must be left in considerable doubt as to whether "B12" was or was truly intended to be a working plan and what was actually used or copied in the mould-making. I have borne all these criticisms in mind. Ngai Kwong's manager, Mr. Lam gave the background for the need of a stand. Mr. Ishihara recounted the making of "B12" by Mr. Ohto. He himself made a rough sketch with no dimensions for the stand and had discussions with Mr. Ohto. Mr. Lee was ultimately given "B12" for making the moulds in 1976. No matter how much or how little Mr. Lee understood that sketch when Mr. Ohto was available, the bare fact remains that with "B12" being the only drawing he was given to work on, a mould for the stand was finally delivered and paid for. Mr. Ohto cannot be made available to comment on the right-hand-side sketch of the clip. In the end, I come to the conclusion that much skill and labour had been involved in the preparation and making of this drawing "B12". I am not persuaded that the statutory presumption has been rebutted. I find "B12" original. I do not propose to repeat again that I rely on the presumption alone as well as all the evidence, including the presumption.

36. Drawings "B15" and "B16" could be conveniently considered at the same time. They are drawings of the mica sheets. They were both done by the late Mr. Ohto. In addition to the presumption, the other evidence is that the thermostat was deliberately arranged parallel to the heating coils. The mica sheets were each also particularly cut to suit the arrangement. Mr. Nakamura devised, tested and adjusted the heating elements in the spacing of the coils, the gauge of the wire and also the pitch i.e. the number of coils. As I have said, I am not really concerned with the effort involved in developing and finalizing these ideas for the special arrangement. I am only concerned with the skill and labour required in setting these ideas down on paper, in other words, in the actual preparation for and the making of these drawings. The real question is whether there was "skill and labour needed to give any given idea some particular material form, for it is the form in which the work is presented that is protected by copyright". See L.B. (Plastic) Limited v. Swish Products Limited^(4a). So guided, I am satisfied that both of these are original works.

37. Drawing "B22" is the strengthening piece for the mica sheets. The purpose was to hold the two mica sheets in place. This was a redrawn of another drawing "B7" which was unsuccessfully sought to be included in these proceedings on an application to amend. The only modification some three years afterwards in "B22" was the enlargement of the two openings on the far-end edges. Instead of having a diameter of 24mm, the enlargement makes each of these openings with two elongated parallel sides 24mm apart with the curvature on each end radiused 1.2mm. Nothing else was re-arranged. This "B22" drawing was made by Mr Bota. Certainly some effort must have been made in the course of conceiving this idea of enlarged openings, but even assuming "B22" to be a wholly independent redrawn of the same simple shape and dimensions, the degree of skill and labour required in drawing this strengthening piece again must be minimal. The effort to reduce this concept of two enlarged openings into their material form as they appear in "B22" would seem to be also insignificant. There does not seem to be any other way of representing enlarged openings. After all, "a square can only be drawn as a square, a cross car only be drawn as cross." See Kenric & Co. v. Lawrence 8c Co.⁽⁶⁾ An enlarged opening can only be drawn as an enlarged opening. It is always a question of fact and degree. Furthermore, in proportion the modification has added little more to the whole drawing as it existed in "B7". The redrawn needed little extra effort. "B22", I find, is not original.

38. I turn now to the three drawings in Issue A allegedly lost. They are drawing No. 79-HA22-0329 for the concentrator and drawings 79-HADC-0309 and 0310 for the motor brackets. As for the alleged lost drawing for the concentrator, introduced as the second version in 1979, the product from the moulds made from it is said to be Exhibit P17(2). Compared with what this Court was told as the first version concentrator in the shape of Exhibit P17(1) from "B4", it was said that two surfaces of the 1979 second version were flattened for better appearance and performance. The ribs inside the concentrator of the first version had also been removed. The thickness of the mouth had been increased. The opening of the concentrator had been enlarged and the length of it increased in 1979 to cater for 1,400 volts in the second version in 1979. The Court was told that there should be three sketches on the lost drawing, very similar to "B37" which is a drawing done in 1983 and therefore not sued upon in these proceedings. There are dimensional differences between those marked on "B37" and on the lost drawing principally because of fairly extensive modifications. Mr K.T. Choy was responsible for this lost drawing, and he described P17(1) as the Mark 1 version, P17(2) as the Mark 2 version and P17(3) as the Mark 3 version. The 1ast version come from the unsued upon drawing "B37".

39. With modifications such as a thicker and horizontally wider mouth, flattened outer surfaces for improved appearance and better performance, increased length and the removal of 4 inside ribs, one would expect that all the three new views to be noticeably different. Considerable skill and labour would have to be and was in fact engaged by Mr Choy in this lost drawing for the Mark 2 version. Moreover, a hand-made sample was produced to Mr K.T. Choy which he used for general appearance. In conclusion, I find that the drawing for this concentrator, the Mark 2 version, is lost and original.

40. I come now to the alleged lost drawings for the motor bracket, for which Mr K.T. Choy was also responsible. Mr K.T. Choy referred to a hand-made sample for general appearance in preparing and making these drawings. These lost drawings were for the second version motor bracket made in April or May 1979. The hand-made sample was also used for adjustment in trial fitting of the motor bracket into the main housing. The hand-made sample cannot now be found. Mr Choy told the Court that he spent a total of four days for these two drawings, making calculations and adjustments for the size of the motor bracket. These lost drawings were made specially for making moulds for the front half and the rear half of the motor bracket. However, Mr K.T. Choy was not able to remember whether there were any differences in marked dimensions between the lost drawing for the front half and drawing "B36", but he recalled that there were changes in dimensional tolerance for "B36". I am satisfied that enough skill and labour were involved in the preparation and making of each of these two lost drawings for the front and rear halves of the motor brackets. Both of these drawings are, I find, lost and original.

41. In 1980, further drawings of the two halves of the motor bracket were made and they are the "B35" and "B36" drawings. Mr K.T. Choy was also responsible for these two drawings he made reference to the 1979 lost drawings as well as the 1979 motor bracket. These two drawings appear to be very complex. As I have said, athough Mr K.T. Choy could not recollect whether or not there were any dimensional difference between the lost drawing for the front half of the motor brackets and "B36", he categorically testified that the making of these two drawings, "B35" and "B36" in 1980 was for removing some dimensional and other imperfections in the 1979 lost drawings. Moreover, there was room for improvement in the presentation of the sketches in the lost drawings. Mr K.T. Choy maintained that the tolerance dimensions were definitely revised as were the fitting dimensions and that the layout for the sectional views as well as the marked dimensions was rearranged for better appearance. He also told the Court that these 1980 drawings were not traced from the 1979 lost drawings. In 1980, these were drawn afresh. He had needs to refer to design information including design books. I am satisfied that substantial skill and labour were involved in the actual. preparation and making of ''B35" and "B36". I conclude that each of these drawings has "originality".

42. I have dealt with the 12 drawings together with the three lost 1979 drawings for the big hair-dryers. I pass now to the drawings for the small hair-dryers. Drawing "B38" is a general assembly drawing. This was made by the late Mr. Ohto. It shows the small hair-dryer together with the concentrator, the front ring and the rear Cap. It has a side view, a back view and a floating cross-section of the handle. It also shows the air outlet grille as well as an independent sketch of the concentrator. The presentation is well-balanced with sketches tidily arranged, giving dimensions and containing specific references to some other drawings relied upon in this trial, such as "B39" for the rear housing, "B40" for the front housing, "B45" for the switch cover, "B46" for the hang-up ring. It also refers to five other drawings not relied upon by Ngai Kwong, namely, "B41" for the rear cap, "B42" for the front cap, "B43" for the nozzle, "B44" for the motor bracket and "B47" for the fan. Reference is also made to five other drawings not produced, one for the bracket cushion, one for the air outlet grille and three for the heating elements.

43. It is common ground that for the purpose of understanding any particular drawing under consideration, reference may be made to other obviously related drawings and that this would apply to the question of infringement as well as to the section 9(8) defence. That is what has sometimes been said that a drawing is not to be considered in isolation. But in considering whether the copyright in each drawing has been infringed, the specfic drawing alone must be looked at. Whether any drawing is obviously related to another does not really call for any determination as I do not feel the need for going beyond the four corners of any drawing to understand it.

44. This drawing, "B38", was used by the mould maker, Mr. Law, for reference only. This is a drawing made by the late Mr. Ohto. There were discussions for 2/3 days between Mr. Ishihara and Mr. Ohto as to the length and diameter of the barrel, the handle shape, the hang--up ring and the concentrator. The time spent by Mr. Ohto in the preparation and making of this drawing was estimated to be some ten days. The presumption has not, in my view, been rebutted and the totality of the evidence shows that indeed the "B38" drawing is original.

45. Drawing "B39" is for the rear housing of the small hair-dryer, and "B40" is a drawing for the front housing half of the small hair dryer. They were both made by the late Mr. Ohto. Mr. Bota described these drawings as very complicated. The presumption of originality has not been rebutted. On all the evidence in this case, it has been sufficiently proved that each of these drawings is original, and I so find.

46. "B45" is a drawing for the switch cover. The general arrangement drawing "B38" refers to this particular drawing by its number. The reference to "B45" in the general assembly drawings offers no further information apart from showing the precise location of the switch cover on the side of the handle. In reality, I need not refer to another drawing to understand "B45". B45 was made by the late Mr. ohto. It was estimated that the late Mr. Ohto took about two, three hours to make this drawing. The drawing is not too complicated but very well presented with an aerial view of the switch cover and also a side view of it. They are given marked dimensions. Even for this comparatively simpler drawing, the arrangement, the layout and the marked dimensions in the well-balanced projection are more than enough to show that a fair amount of skill and labour had been expended or the preparation and the making of it. The presumption has not, in my view, been rebutted and all the evidence justifies the conclusion that this drawing is original.

47. Drawing "B46" is for the hang-up ring, this was made by the late Mr. Ohto and approved by Ishihara. It is not a complicated drawing but it is well shown in graphic form. The layout makes it easy to look at and understand. Two views are conveniently paired with a fair amount of dimensions marked. Again, the presumption has not, in my view, been rebutted. On all the evidence, clearly sufficient skill and labour had been involved in the actual preparation and making of the drawing. It is original.

48. "B48" is a drawing of the end Cap. This drawing was made by the late Mr. Ohto for the making of a new mould for introducing a round end cap to replace the existing conical-shaped end cap in use. Mr. Ishihara had discussed with the late Mr. Ohto for about an hour and the late Mr. Ohto took a further hour or two to have this drawn. According to Mr. Ishihara, the modification was to prevent the hair-dryer from standing on its rear end so as to make it a safer household item. In fact, Mr. Bota produced several hand-made samples for reference and for tests. A hand-made sample was said to have been selected by the late Mr. Ohto for reference in making his drawings. Although the drawing is comparatively simpler, in my view, the presumption has not been rebutted and the other evidence reinforces the presumed fact that this is indeed original.

49. Drawing "B51" is for the front ring. It was incorrectly described as "Air inlet cap". The existing front rind at the time had a step and Mr. Ishihara wished to improve its appearance. With this in mind, the drawing was made by Mr. Beta. Mr. Bota himself made 2 or 3 hand-made samples for approval by Mr. Ohto whose name also appears on the drawing. Discussion was had between Mr. Bota and the late Mr. Ohto. According to Mr. Bota, he took an hour to complete this particular drawing for the air outlet ring. The drawing seems to be slightly more technical, but it is not really complicated. The layout looks well arranged. Enough skill and labour had been involved in its preparation and making to make this drawing original.

50. Drawing "B52" is for the Mark 2 concentrator. Because of the new front ring, the existing concentrator of the small hair-dryer had likewise to be modified. "B52" was, like the other drawings, intended to be used for mould making. There were hand-made samples. After his approval, the drawing was prepared and completes by Mr. Beta in about 2 hours. "B52" is well drawn. It is, I find, original.

51. "B53" was made by the late Mr. Ohto. This is a drawing for the new air concentrator with a pair of slits added. The slits were intended to make the concentrator fit into the front ring more easily. It is a functional design. The rest of the drawing, being the shape of the then concentrator is simple but more graphic and is quite unlike the concentrators depicted in the other drawings in this case. The drawing itself in "B53" gives an impression that it was deliberately so drawn to highlight the added slits together with its dimensions. I have given this matter considerable thought, but in the end, I have come to the conclusion that the slits deliberately presented in a simplified outline of a concentrator in "B53" had been well thought out and drawn to give this drawing "originality". In my view, even in this simple graphic presentation, copyright subsists.

52. "B55" is a drawing for the fan. As the existing fan in the small hair-dryer was noisy and unsatisfactory, it was replaced by this fan initially designed for another model JK133. Mr. Bota took about four days in making several prototypes for test. That is not strictly relevant, but he took about a day and a half to make this drawing incorporating the test results. This is a fairly complicated drawing. All the sketches appear to be well balanced. The presentation is pleasing to look at. I find drawing "B55" original.

53. Drawing "B56" is for the motor bracket for the small hair-dryer. The motor bracket depicted in this drawing is the improved version. This drawing was made by Mr. K.T. Choy on the instructions of Mr. K. K. Choy and after discussions. The motor bracket was deliberately designed to cater for 1,400 watts as well as 1,200 watts. The circular PVC cushion rings in the existing motor brackets were dispensed with. The vanes were reduced from 7 to 6 to complement the reduction in fan blades from 8 to 5. The heights and angle of the vanes were also modified to improve air flow. The inside diameter of the motor bracket was also increased. Some small plastic pins were eliminated. Mr. Beta handed over to Mr. K.T. Choy a hand-mane sample with motor and a fan used for another model JK133. Reference was made to this article supplied for general appearance, but Mr. K.T. Choy himself did the calculations after having taken measurements. It took him a day and a half in the actual drawing of "B56". An extra day had been spent on calculations and taking measurements. Against this background "B56" can be seen to be a fairly complex drawing. It appears to be well thought out in its presentation. I find "B56" original.

54. I should deal with "B58" and "B59" together. They are drawings for the mica sheets for the heating elements of the small hair-dryer. Mr. K.T. Choy was responsible for making these drawings. It took him about a day. These drawings were made for the new version of heating elements which had to be redesigned to cater for the 1,400 watts. Mr. K.T. Choy made reference to a hand-made sample and a preliminary dimension drawing, both of which he could no longer locate. He explained as to how he designed the 8 cutouts on the mica sheet in "B58" and the two slot cutouts for accommodating the thermofuse and thermostat in "B59". He rearranged the position of the thermofuse and thermostat rendering the previous deflector for the thermostat unnecessary. The deflector formerly served to channel air flow at the thermostat making it more sensitive. The mica sheets were modified to improve function and reduce factory costs. None of these modifications are directly relevant, but obviously much effort and ingenuity had gone into producing such a drawng with such a realignment. I conclude that each of them is original.

55. Therefore, I find "originality" in all the drawings concerned with the exception of "B22".

56. The mainstay of the defendants' contentions may be summarized as follows: -

57. If copyright subsisted

(1) whether Ngai Kwong did itself attempt to copy from these respective drawings in the making of the respective moulds;

(2) if they did, whether in so copying Ngai Kwong had succeeded in taking a substantial part of each respective drawing; and

(3) whether the final versions with all the refinements can each still be said to be a reproduction of a substantial part thereof.

58. Ngai Kwong is put to proof such alleged casual link. Bare assertions may not be enough. Ngai Kwong has a burden to discharge. Ngai Kwong has, in the end, to establish on the balance of probabilities that these versions before the court have taken or retained the essential features and substance of each respective drawing. Obviously, if Ngai Kwong should fail to prove these moulds as having been at all modified that would be a weighty factor unfavourable to Ngai Kwong's stance that it had copied from its drawings.

59. A great many aspects in this case were drawn to my attention by Mr. Rogers, counsel for the defendants, in his pains' taking demonstration as to why Ngai Kwong had or could have copied from other sources than the drawings. I was time and again reminded, and rightly so, that in the end Ngai Kwong has to satisfy the court that each product is a reproduction of a substantial part of the respective drawing or drawings.

60. The products came from metal moulds. These drawings were all given to the mould makers, but some drawings were admittedly used for purposes other than for mould making. Mr. Ishihara described drawings generally as mechanical drawings. Mr. K.T. Choy conceded that some of the drawings were made use of for the purpose of quality control. Counsel for the defendants also directed my attention to the fact that "B8" was for Incoming Quality control as well as for safety approval from or through the Universal Laboratory. It was explained on behalf of Ngai Kwong that "B8" like "B60" was distinguishable from the drawings for mould-making. As can be seen, "B8" gives few dimensions and contains a table for quality control.

61. Mr. Rogers also voiced his scepticism as regards "B32" being a working drawing for a part of the first DC version motor bracket i.e. its white cover. The motor bracket "P8" comprises a white cover and a rear bracket in brown. The first DC version was introduced in 1977 before the second version. Mr. Bota as well as Mr. Lau gave 1977 as the time for the introduction of both the white cover and the brown rear bracket, but Ishihara claimed that the white cover came into existence later in time than the brown rear bracket. Mr. Lau was the mould maker himself. Like counsel for the plaintiffs, I prefer Mr. Lao's timing.

62. Returning to Mr. Rogers' scepticism which is founded on "B14": "B14" is not a drawing relied upon by Ngai Kwong. It bears a date of "6th June 1977". "B14" is a drawing for the first DC version brown rear bracket as that in "P8". "B32" dated 2nd March 1979 is another drawing also not relied upon by Ngai Kwong in these proceedings. It is a drawing for the white cover as that in "P8". The contract for the making of the second version DC motor bracket, Exhibit C23, is dated 23rd April 1979. Counsel argued that "B32" could not have been prepared for the making of the 1st version DC white cover in March 1979 when the second version DC motor bracket was about to replace the first version some two months away under contract C23 dated 23rd April 1979. In April 1979, under contract C23 the plaintiffs were to tool the mould for the second versions DC motor bracket. It would have been futile, so ran Nr. Rogers' argument, to have "B32" prepared for mould making in March 1979 so very close to the tooling of the second version unless "B32" had other purposes to serve. Mr. Rogers therefore submitted that at least in "B32" one would find a drawing unlikely to have been intended for mould making purposes.

63. The brown rear bracket of the first version had its drawing "B14" made in June 1977. Counsel for Ngai Kwong, Mr. Liao submitted that "B14" was consistent with Mr. Lau's evidence that both the white cover and brown rear bracket were introduced at the same time in 1977. Mr. Liao further complained that as there was no cross-examination directed at the use or intended use of "B32" being itself a drawing not sued upon, no evidence was sought to be led on the whole history relating to it. Mr. Lau did mention, in passing, an earlier drawing given to him for making the white cover in "P8". There was no evidence that drawing "B32" could not be or was not used for mould making at some stage. The truth is that this was not a matter on which any evidence had been adduced. However, K.T. Choy did testify that any drawing with marked dimensions could be so used. Mr. Liao maintained therefore that there was no justification for advancing the hypothesis, as Mr. Rogers did, merely on the basis of dates and sequence of drawings without having their background fully explored. I share Mr. Liao's sentiments.

64. Mr. Rogers lay great stress on the availability of other reference material and the occasions on which use was made of other drawings, objects, hand-made samples and samples there were modifications on oral instructions or otherwise for various reasons. At times, marked dimensions were deliberately not adhered to either because of difficulty in implementation or because of the tolerance for close enough dimensions in the overall shape of the article delivered. There were times, with information lacking in precision or being deficient, when consultation was had or improvisation resorted to. Drawings were even measured well knowing the risk of distortion, especially from copy drawings on paper susceptible to humidity. I need not enumerate all of Mr. Rogers' criticisms to which proper regard has been paid in all my deliberations.

65. It was admitted that the defendants copied or caused to be copied Ngai Kwong's hair-dryers as supplied by Hiraoka in 1982. However, during these proceedings it was sought to be alleged that the fan was not in fact so copied but came from the Fonda electric knife. Kenic themselves copied Fonda's electric knife as early as 1981. The fan in the defendants' copied hair-dryers was of a similar type as the Fonda electric knife fan except with a slight difference in fan blades. However, Mr. Rogers informed the court that the defendants had no idea as to where Fonda itself had obtained this fan from. Mr. Liao disclosed that from the limited inquiry the plaintiffs were able to make in the midst of this trial, Fonda had been defunct. As for the fan, this court held the defendants to their admission, but the defendants still relied on the fact that similar fans were in use by others in 1982. With the original source of these similar fans being unknown, such contemporaneous user cannot be of any great assistance to the defendants.

66. The defendants were instructed to copy Ngai Kwong's hair-dryers. The defendants bought parts from the market, but the hair-dryers including the fan were given to Kenic to copy and Kenic was never instructed to copy from other fans or from any of its own fans. The fact that the copied fan happened to look like another fan must have prompted the defendants to attempt a retraction of part of their admission. In my view, that must have been an afterthought.

67. The real bone of contention was that Ngai Kwong did not produce the moulds from their drawings and that in any case, the totality of the evidence was insufficient to establish it. The defendants also put Ngai Kwong to proof that the final products were in fact a reproduction of any substantial part of these drawings.

68. In deciding whether a substantial part of the relevant drawing had been reproduced, one should rather look at the. quality than the quantity taken. In considering the quality of the parts taken, regard shoud be had as to "how important that part is to the recognition and appreciation of the 'artistic work'". See Catnic components Limited v. Hill & Smith Limited⁽⁷⁾. For infringement, each drawing should be looked at separately. Mr. Justice Whitford, an experienced Judge in copyright accepted counsel's submission with approval in L. B. (Plastic) Limited v. Swish Product Limited^(4b) "that copyright must be tested separately against each drawng relied upon and that it is for the plaintiffs to prove that the whole of any one work, or a substantial part of anyone work had been taken by the defendants." In Ladbroke (Football) Limited v. William Hill (Football) Limited^(5a), Lord Reid also implored us to treat it as a "single work". Conversely, it is not permissible to dissect an alleged infringing article into its component parts for matching any one section of a drawing as in the case of a drawing of cut panels for garment. See Merlet v. Mothor care P. L. C.⁽⁸⁾

69. Mr. Liao conceded that in the circumstances of this case, striking similarity was merely a factor for consideration in the general issues but would not by itself raise any presumption against the defendants or in favour of Ngai Kwong.

70. Mr. Rogers reserved the right to argue the meaning of the word "reproduction" in section 3(5) as elaborated in the speech of Lord Griffiths in the House of Lords in the British Leyland case⁽⁹⁾ i.e. "reproduction" "should not be extended to include 'indirect copying' but should be limited to its natural meaning of direct copying" in the case of "a mechanical drawing or a blueprint of a purely functional object". In view of the advice given in De Lasala v. De Lasala⁽¹⁰⁾ and Tai Hing cotton Mill limited v. Liu Chong Hing Bank Limited⁽¹¹⁾ , this point cannot be a live issue before me, and I need say no more on the reservation of counsel.

71. Most of these principles seem to be common sense. So sounds the reminder given by Graham, J. that regard has to be paid to the nature and quality of the evidence in conjunction with all the surrounding circumstances. Merchant Adventurers Limited v. M. Grew & Go. Ltd.⁽¹²⁾. Even the guidelines recommended for the consideration of commonplace features seem also to be just pure common sense. Indeed as early as 1921, in Nicol v. Barranger⁽¹³⁾, Lord Sterndale, M. R. commented, so he was being quoted, that in dealing with alleged infringements of a copyright drawing of "merely a representation of a common article of the trade", "less importance is to be attached to the general resemblance and more importance to differences in detail". At page 240, Warrington, L. J. took the same point:-

"When two people are representing the same thing in the same style you expect to find, and you must find, general resemblance, and in such a case as that it is to my mind the particular dissimilarities which are of much more importance than the general resemblances. "

72. At page 234, the Master of the Rolls criticized the trial judge as having paid "perhaps rather too much importance to the undoubtedly general similarity" at the expense of the evidence. In Catnic Components Limited v. Hill & Smith Limited^(7a) Buckley, L. J. warned against placing too much emphasis on dimensional similarities ............. due ........ to the functions which the (objects) were designed to perform. "

73. As for wellknown views of a scenic spot, Whitford J. stressed the importance of the selected special features against the same scenic foreground of usual sights like the House of Parliament, Westminister Bridge and Embankment.

74. In all these cases, significance was sought to be attached to detail. I have already dealt with the role of "collocation" as spoken of by Lord Pearce in Ladborke (Footall) Limited v. William Hill (Football) Limited^(5b) .

75. Hair-dryers such as these are all common articles of the trade with much of its design and appearance dictated by functions. I have constantly reminded myself of these principles in this case.

76. I have touched upon the section 9(8) defence. The onus falls on the defendants. The sub-section is set out earlier in this judgment. Section 9(8) has been described as "a test of lay recognition" on the basis of "a visual comparison of the object with the drawing including everything written on it. " See Swish case ^(4c). The test may also broadly be said to be one of appearance. At p. 635, lines 39-40, Lord Salmon spoke of this sub-section as "indeed a curious section" and recommended in these terms: "If and when the law of copyright is again considered by Parliament, it may think that a long, cool look should be taken at this strange subsection." See p. 635 line 45 to page 636 line 2.

77. The notional non expert must be one in relation to hair-dryers and their components, though he is "credited with some ability to interprete design drawings" and he "should not repeat the process which, as judge with the assistance of expert and other witnesses, he has gone through in deciding whether there has been copied or not."^(4d) In Dorling v. Honnor Marine, Limited & Anr.⁽¹⁴⁾, Harman L. J. indorsed the approach of the trial judge:-

"The notional non-expert should be one 'who did not know that they (the substantial parts reproduced) were in fact based on the plans'".

(The words supplied within brackets are mine)

78. I am also much drawn to the clear statement of Mr. Justice Graham at page 12, lines 44-48 in Merchant Adventurers Limited v. M. Grew & Co Ltd.^(12a):-

"There is infringement of drawings by a three-dimensional reproduction of those drawings if they are sufficiently clear for a man of reasonable and average intelligence to be able to understand them from an inspection of them to such a degree that he would be able to visualize in his mind what a three-dimensional object, if made from them, would look like. "

79. The defendants admit copying the big and small hair-dryers of Ngai Kwong supplied to them by Hiaroka in 1982. Exhibit P5 was the earlier AC version of the big hair-dryer. Throughout the whole trial, Exhibits P1, P8 and P37 had been interchangeably used for the DC version of the 1982 big hair-dryer. These were the three cavities made by Ngai Kwong for Hiraoka. Mr. Ishihara disclosed that there were three sets of moulds made and used for the very same main housing. In dealing with measurements given in his table, Mr. Nakamura also measured parts of Exhibit P1 in Court as if they had been the same housing, and he was not challenged in that manoeuvre. It must have been very much an afterthought if one sought to draw, as the defendant did, any distinction between these Exhibits, P8, Pl and P37.

80. As for the small hair-dryers supplied in 1982, Exhibit P2, P12 and P39 had also been interchangeably used by both sides throughout this trial. Mr. Liao has accepted that Post A in P2 and P12 is different in height and that Post B's internal diameter is also different. Mr. Nakamura compared P2 with P39. Exhibit P12 incorporated the earlier parts of the small hair-dryer like the conical end cap, the front ring and the concentrator but with a different motor bracket, fan and heating element. There is no evidence that P2 is otherwise different from P12 except for the two posts, A and B. In the notes of proceedings, there are a great many instances of the use of "P2" and "P12" interchangeably by both sides, such as at pages 77, 96, 98, 100, l04, 210, 1110, 1113, 1115, 1181, 1212, 1213, 1216, 1218, 1221, 1226, 1227, 1229, 1479, 1481 etc. It must also be an afterthought attempting to differentiate these exibits.

81. Having dealt with the above aspects raised in the course of these proceedings, next I come to the evidence. I accept the evidence adduced on behalf of Ngai Kwong and Hiraoka that these drawings were made fur the mould making. Mr. Lee, the 2nd defendant agreed that it was the normal practice to prepare drawing for making moulds and that even on instructions to copy from a given sample, a drawing would still be necessary if subsequent modifications were envisaged. These drawings were, according to Mr. Ishihara, very important as he "wanted to wake sure that the drawings were done the way he wanted." The mould makers were contracted and, I find, endeavoured to make the moulds in accordance with these drawings. It is true that for various reasons some parts were departed from or not strictly followed in the mould-making process, but there is no evidence that any part of the moulds was copied or taken straight from any existing hair-dryers or from any other drawings or otherwise from any unrelated reference material. Samples of various kinds including metal plates had been taken advantage of at various stages, but there is no evidence that any of these was significantly different from the drawings and the marked dimensions. In fact, they all appears to be similar. Primarily, reference was made to them for shape and general appearance and, at times, for supplemental information. Some metal plates have been proved to come from the drawings for checking the moulds.

82. Mr. Law, the mould maker for the small hair-dryers once remarked that the drawings in court were the only drawings that he could locate and that there were others at the time of the making of the moulds. But what is significant is that he never claimed to have used any other drawings than those in court for the making of the moulds under consideration. There were other moulds and drawings with which this court is not concerned. It is quite true that Mr. Law had not been asked specifically, for each of the relevant moulds in question, whether the drawings he was confornted with in court were the only drawings that he had used, but reading his evidence as a whole, that is, I find, the fair inference. Not only were all the mould makers contracted to tool the moulds according to the drawings supplied, they had made an effort to adhere to them. The author of the relevant drawing or drawings had invariably stood by for consultations in which details were interpreted and explained and, from time to time, departures and modifications were authorized. References made to other articles and matters were for general shape or by way of seeking supplemental information. At no time were they instructed to disregard the relevant drawing or drawings. Delivery of moulds was expected to be and was in fact accepted, with modifications, authorized or otherwise made. The mould makers were very conscious of the fact that the drawings supplied were to be followed as closely as they could. I find that none of those departures or deficiencies has affected the essential features and substance of the relevant drawing or drawings. Not every difference between the product, the mould and the relevant drawing or drawings has been satisfactorily explained, but in my view these differences could have only come from subsequent modifications. It is inconceivable that the making of the moulds could have followed other sources and yet with so many parts closely matching the data and dimensions in these drawings. Such could not have been matters of shere coincidence. These drawings must have been used.

83. The inspection of the moulds caused to be carried out by the defendants, was not the best possible test due to practical constraints. The surveyors firm was not instructed as to where the alleged alterations were or how they were made. The surveyors' radiographic "Maco Testing" was not geared to detect the existence of any possible alterations, but it was more for the discovery of flaws in known alterations by soldering. As the moulds inspected must not be damaged, a non-destructive but less satisfactory test was used. Again, only one set of moulds were inspected. The result of the inspection was not that there were no modifications but that there was no detectable welding flaw. I to not find the surveyor's examination of any real assistance.

84. There were some apparent difficulties in explaining or interpreting the dimensions. There are differences between the product and the drawings. But there is no real justification for condemning the plaintiff's witnesses as unreliable. Some explanations appeared to be strained at times when the witness or witnesses were endeavouring to offer assistance to the best of their ability. There has been a long lapse of time, and the occasional inability to retrieve real or other evidence for corroboration or confirmation heightened tension in cross-examination. The mould makers had either a leading or supervisory role. Tooling was a team work. There was then the author available for consultations. The mould makers are not articulate. It is understandable that being alone in the witness stand without his team mates, part of their evidence on the drawings is unsatisfactory. Mr. Lau was even driven to tears. When he later returned with some retrieved metal plates as evidence that the relevant drawing were worked on, he faced a new challenge as to the manner in which he had taken some measurements. But there is no evidence that at the time of the mould making, there were serious obstacles which the team were not able to cope with or overcome. Moulds were made from the drawings and accepted. Indeed the mould makers' reconstruction, in the witness stand alone after a long lapse of time was at times less than satisfactory, but none of the plaintiffs' witnesses who came forward to give evidence, has, in my view, attempted to mislead the Count. Subject to these observations, I have no hesitation in accepting their evidence.

85. I should say a word or two more on the hand-made samples. It is reasonably clear that they were made for general reference as to shape. The hand-made sample, like the templates, the metal samples or plates B3(2) or P33(1), do not show the internal arrangements or give precise three-dimensional information. In some cases, drawings were maid even after the supply of a hand-made sample. Mr. K.T. Choy made drawings for the motor bracket for the big hair-dryer after Mr. Bota had given him a hand-made sample. Sometimes, a hand-made sample, like that for the motor bracket, was used for endurance test and for checking its good fit with other part. Whilst drawings had invariably been supplied to the mould maker, hand-made samples were not. Mr. Lau, a mould maker, further explained that samples made of plastic sheet would not be very reliable for actual dimensions because of distortion and also because the samples were made by hand. Another mould maker for the stand, Mr. Lee, was not certain if any sample had been given. Anyway, so he testified, with or without any sample, mould maker had to rely on the drawings.

86. The mould makers were criticised as being less than competent in understanding the drawings. Except for some occasional slips such as Mr. K.T. Choy's misreading of the top centre sketch in "B12" as the underside view instead of the aerial view, the confusion as to which clip is depicted on the right hand sketch in "B12" and the erroneous interpretation of a part of the fan drawing, "B11", all concerned, including of course the mouldmakers, displayed reasonably adequate working knowledge of interpreting drawings. After all, the tooling was completed - though not without consultations - and accepted. There were no instructions for treating these drawings as discarded, and there is no evidence that they were at any time wholly or substantially ignored.

87. Much was also sought to be made of the measurement of a radius from drawing "B36". Whilst it was conceded that the accuracy of any measurement taken from a copy drawing was questionable by reason of distortion caused mostly by humidity, Mr. Law's explanation was sensible. He said that in practice, every possible manipulation would have been tried to facilitate tooling.

88. Finally, I should deal with the burden of proof. The racio decidendi of the decision in R. v. Home Secretary, Exp. Khawaja⁽¹⁵⁾ has now been clarified by R. v. Hampton County Court exp. Ellerton⁽¹⁶⁾. The seriousness of an allegation is always a matter to be taken into account in the consideration of the civil burdon which remains throughout one of proof on the balance if probabilities. At p. 608 a/b and g/h, Slate, L. J. in the Ellerton case⁽¹⁶⁾ has this to say:

"The passages from the speech of Lord Scarman in Khawaja v. Secretary of State for the Home Department ...... which have already been cited by May, L.J. well illustrate that the civil standard of proof on the balance of probabilities is a flexible one and that, the graver the issue involved, the higher is the degree of probability which the court should require. "

"My understanding of the concept ...... is simply that the relative seriousness of the allegation is a relevant factor, on occasions a highly relevant factor, in considering whether or not the civil burden of proof on a balance of probabilities had been discharged in any given case. "

89. The accusations levelled at the defendants of pirating Ngai Kwong's copyright in these drawings are serious accusations. Activities such as these alleged, would load to possible criminal prosecutions. Not only would these allegations expose the defendants to criminal liability, they would also tarnish the defendants' business reputation and goodwill here and oversea. I have borne this in mind in considering all the evidence.

90. I now return to the drawings.

"B1"

91. The defendants through their counsel highlighted seven differences between this Drawing, "B1", and the product under consideration. It was pressed upon me to give weight to the words "same as Conic" and the references made to existing articles, particularly to GE Pro 6. Counsel argued that those would at least reflect an Ngai Kwong's inclination and. readiness to copy and that bent towards taking short cuts and with opportunities available, there was no telling as to what Ngai Kwong had or might have taken in making moulds. It was contended that the number, scope and extent of the differences from the marked dimensions were in these circumstances, indicia of Ngai Kwong not having in fact used "Bl" for mould making. In any event, so it was submitted, for this drawing as for most if not all of the others, serious doubt has arisen in Ngai Kwong's assertion that the drawings were respectively relied upon in the making of the moulds. It was also submitted that because of these differences, products from the moulds as ultimately used on the production line had not taken a substantial part from "B1".

92. These differences can broadly be divided into differences amongst the set of drawings "Bl", "B2" and "B3" themselves and differences in the products from the marked dimensions in "B1". Take for instance, the distance between the bumps (i.e. grip distance) on the handle is given as 14.5 mm in "B1" but 19.5 in "B2"; the radius at the toe was given at 3.75 mm in "B1" but 4 mm in "B2" and "B3". The height of the motor hump is different in "Bl" and "B2", 29 mm as opposed to 30; the vanes radius is noticeably different from the radii of the vanes in the actual product; the mid-connecting ring in the vanes as shown in "B1" is absent from the final product. Of these variations, only two were sought to be explained, i.e. the height of the motor hump at 29 mm in "Bl" and 30 mm in "B2" and the raid-connecting ring for the vanes. Mr. Lau, the mould maker for the big hair-dryers told the Court that the hump height discrepancy, as accounted for by Mr. Ohto, arose from the different selected starting points for taking measurement. As for the mid-connecting ring for the vanes, it was omitted on the instructions of Mr. Ohto. I accept Mr. Lao's explanations. The rest of the differences were left unresolved. However, the differences are in my view insignificant. After all, the overall shape is the same. The disparities in terms of millimeters have brought about no change in the general appearance. Adherence to the overall shape was understandably the overwhelming aim of the manufacturers and mould makers involved. Hair-dryers are no precision instruments. With rather unsophisticated means of mould-making to which I will later return, I would not infer from differences in millimeters that the drawing was not used or followed. "B1" was given for mould making purposes together with "B2" and "B3". "B1" Supplements "B3" In the air-intake grille. The discrepancies in the marked dimensions presented no difficulty to Mr. Lau, the mould maker, who was primarily concerned with the overall shape. "B1" is more than a general assembly drawing. In particular, it was relied upon for the air-intake grille. "B1", unlike "B38", contains no specific reference to other drawings. Mr. Rogers submitted that "B1" could not therefore be taken as being obviously related to "B2" or "B3". I am not persuaded that counsel is right. Whether or not a drawing is obviously related to another must also be judged by its nature and character. In my view, these three drawings are obviously related with "B1" supplementing "B3" for the air-intake grille although I need hardly make any reference to another drawing for understanding any of them. In my view, the moulds were made from "Bill in conjunction with "B2" and "B3". Despite the differences, the 1982 hair-dryers in question were a reproduction of a substantial part of "B1". The defendants copied from the 1962 hair-dryers and, in my judgment, infringed the copyright of Ngai Kwong in this drawing.

"B2" & "B3"

93. These drawings were given to Mr. Lau, the mould maker, together With "B1".

94. A metal plate, B3(2), was given by Mr. Ohto to Mr. Lau. The normal practice was for the mould maker himself to produce a metal plate or metal plates from the drawings supplied for his own assistance. But for B3(2) in this case, it was Mr. Ohto who, upon being consulted, confirmed that the marked dimensions for the finger grip curves were reliable but offered to make a metal sample for Mr. Lau. B3(2) was therefore expected to be given as an illustration of these dimensions in "B3". Mr. Lau told the Court:

"This steel plate is made in accordance with the drawing in all respects such as its shape, contour, radius positions, inclines, so it is more accurate than the drawing because the paper drawing could be distorted. "

95. When he was checking the metal plate B3(2) against the drawing "B3", he found some discrepancies in the gront portion for the neater barrel though Mr. Ohto had never drawn attention to any difference. He marked that in white on the metal plate in Court, and a photograph B3(3) was taken. Mr. Lau was not alarmed by the difference. He even marked the steel block using the contour of B3(2), but he referred to the drawing for the portion joining the heater barrel to the circular body and the circular 3-dimensional barrel itself. The result was that the steel mould cutting was "more accurate than that as shown in the metal plate", B3(2). He explained that some discrepancies were always expected as metal plates would be polished and filed down to a smooth contour judged merely by eyes and feel. The metal plate gave no 3-dimensional or internal measurements. Mr. Lad made a plaster model from B3(2) and the drawings. With Mr. Ohto available for consultation, Mr. Lau had encountered no serious difficulties. Even after checking, not only did Mr. Lau believe them to be, in substance, the same, he used them collectively. Moreover, Mr. Ohto visited Mr. Lau's factory from time to time, and he raised no objection and suggested no correction. Mr. Lau had never been instructed to drop these production drawings. After all, it was the query on those marked finger grip dimensions in "B3" that had led to the supply of the metal plate B3(2). Even after Mr. Lau's discussion with Mr. Ohto about the finger grip dimensions, he firmly believed that "he was only required to make the mould in accordance with the drawing". In these circumstances, it is quite impossible to accept that B3(2) could have come from a different source, though with slight discrepancies in the front heater barrel. Mr. Lau also made metal plates, Exhibit P30, from B3(2) and the drawings for checking the moulds.

96. This Court heard evidence as to how "B1" supplemented "B3" for the air intake opening and grille. The ring in the middle of the intake grilles was dispensed with on instructions of Mr. Ohto. In "B3" the switch openings had adopted curved edges as shown by the softer lines on "B1". Mr. Lau said he was not shown any other hair-dryer or any other drawings in respect to this switch. Mr. Lau has not been shown to be able to read Japanese. There is no evidence that he was even aware of the presence of the Japanese characters meaning "same as" Conic. Mr. Lau never said that he paid any regard to those words. The "B2" drawing was relied on for the height of the hump.

97. There were quite a number of differences between the measurements taken of the moulds and the marked dimensions in the drawings. First of all, the metal plate B3(2) was used to map out the contour, and there were discrepancies in front. Some departures were made on the instructions of Mr. Ohto and some were approved on Mr. Lao's suggestions, principally for easier tooling or extraction from the mould. And some variations came about from the smoothing over of the various parts joining the different marked dimensions. There are parts without any or any sufficient marked measurements. Cross-section dimensions of the handle up and down its whole length are lacking. The curvature of the broader sides of the handle is also unspecified. Using his own imagination, Mr. Lau interpreted it as flat, level. When he showed a plaster model with flat handle sides to Mr. Ohto, Mr. Ohto did not raise any objections but instead made some alterations to the plaster model himself. The handle, together with its shape and the crinkling curving effect was regarded as a very distinctive part of the hair-dryer. There were even inconsistent marked dimensions for the air intake grille. Of course, differences also arose as a result of modifications, authorized or otherwise.

98. Both counsel submitted exhaustively on such discrepancies and differences. I do not propose to list there all out here. Moulds were invariably attempted to be made from the drawings. Suffice it for me to say that singly or combined, they do not reflect any intention on the part of Ngai Kwong or the mould maker, not to copy from these drawings supplied. Nor do they achieve, individually or together, the effect of eliminating from the product the essential attributes in these drawings. There is a striking visual resemblance between the drawings and the moulded housing halves, but that is not the sole or crucial consideration, yet the similarities between the moulded housing halves and the drawings do clearly show that the salient features and substance of these drawings had been taken. The differences do not produce any contrary effect. By whatever ways and means tooling was implemented and modifications made, in my view the finished moulds were each a reproduction of a substantial part of the relevant drawing or drawings.

99. The defendants admitted the copying of the hair-dryers supplied in 1982. I find, therefore, that the copyright of Ngai Kwong in each of these drawings, as that in "B1", was infringed by the defendants.

"B4"

100. It is a drawing for the heater barrel and the concentrator. The circumstances in which it was prepared and drawn and its delivery to the mould maker support the assertion that it was a production drawing intended to be used for mould-making. As a matter of fact, there is a plastic injection point indicated on the drawing. The salient features are the slating mouth and the stepless heater barrel. The moulds were cut by a lathe by reference to this drawing "B4" except for a circular line inside the heater barrel, which was put on to facilitate extraction of the article from the moulds, with the consent of Mr. Ohto. Most of the dimensions as given in the table of Mr. Nakamura are very close. There can be no doubt that the heater barrel as produced is a reproduction of a substantial part of this drawing "B4".

101. The same may be said of the concentrator. "B4" shows various views of the concentrator with sufficient dimensions. The drawing was made by Mr. Ohto on the instructions of Mr. Ishihara for mould-making purposes. The curved mouth was specially designed by Mr. Ohto as an added safety factor. Mr. Lau had the moulds for the concentrator made. For both the plastic model and the steel moulds, reference was made to the marked dimensions. The product is almost the same as the sketches of the concentrator in "B4" except for the four inside ribs which are flat instead of semi-circular as shown. The dimensions in Mr. Nakamura's table are also fairly close. The product is a reproduction of a substantial part of the drawn concentrator on "B4". As I have said before, the concentrator should best be looked at together with the heater barrel in this drawing "B4", though they are equally prominent as separate components. In my view, the heater barrel and the concentrator have each or together adopted the essential features and substance of this drawing viewed as a whole.

Lost drawing No. 79-HA22-0329

102. It is as good a time as any to deal with one of the alleged lost drawings. Reference No. 79-HA22-0329 (Issue A). This drawing can no longer be found. I was told that it contained the same three views as in "B37". "B37" is not a drawing sought to be relied upon as it was made in 1983 for the production of a later concentrator, Exhibit P17(3). Exhibit P17(2) is a product from the moulds made allegedly in accordance with this lost drawing which introduced a number of improvements and modified the P17(1) concentrator as shown in "B4". According to Mr. K.T. Choy, the lost drawing was made by him in 1979 for the production of P17(2) and it was made for mould-making purposes. The then existing concentator, P17(1) from "B4" was supplied to Mr. Lau together with that lost drawing. The moulds were made in accordance with the lost drawing and reference was made to P17(1) for the three dimensional impression. I accept that the lost drawing was virtually the same as the "B37" drawing, except for a few dimensional differences.

103. With nearly all the dimensions as shown in Table 2, P.40, identical and with the curved mouth, I am driven to the conclusion that in copying P17(2) the defendants have reproduced a substantial part of the lost drawing.

"B5"

104. This drawing consists of sketches for the hang-up ring and sketches for the switch cover. These two items are far apart in different areas of the hair-dryer. They are not close enough in function. or location that they may be said to be obviously related or inter-connected. The drawing was clearly made for the purposes of mould-making. The plastic injection point can be seen in one of the sketches for the switch cover. "B5" was prepared and made by Mr. Ohto on the instructions of Mr. Ishihara. Mr. Lau was given this drawing and he confirmed with Mr. Ohto that the corss-section of the ring was circular. There are dimensional discrepancies found in the switch cover, Pl(1)(e) and the ring P1(1)(f). As for the ring, the length of the horizontal spindle was increased by some 4.2 mm over the marked 10 mm, and the length of the vertical spindle was slightly longer in P1(1)(f). These dimensional differences do not affect the essential features and substance of the ring as drawn in "B5"; which are reproduced in Pl(1)(f). The defendants copied this ring, P1(l)(f), and they infringed copyright in the sketches for the ring on"B5"

105. As for the switch cover, the differences in dimension of the product are also mostly dimensional and insignificant. I need not itemize these. Even with all these differences, the switch cover, P1(1)(e), was clearly copied from "B5". P1(1)(e) has both sides straight and running in parallel, quite unlike the tapering lower bottom portion of the switch covers drawn in "B5". "B1" dated 11th September 1975 had apparently the switch covers amended, and by "B3", the 18th September 1975, a11 seemed to have been neatly incorporated. "B5" is dated some 4 days later, the 22nd September 1975 and yet we still find in the product these dimensional variations together with the parallel straight sides. The product came from the moulds. Mr. Rogers complained that in these circumstances these differences had not been satisfactorily accounted for and that the court was therefore left in doubt as to whether, even if "B5" had been used, there were not new moulds made from other source instead of modfications to the original moulds coming allegedly from "B5". I have already dealt with the use of drawings in general and subsequent modifications, particularly that these relevant drawing or drawings had in no case been abandoned. I find that "B5" was substantially followed and that the later modifications have not affected the adopted salient features. In my view, Ngai Kwong took substantially from "B5". Since the defendants copied P1(1)(e), they infringed.

"B11"

106. In 1977, the first DC version big hair-dryer was introduced. The fan was smaller than that in the previous AC version. The mould maker, Mr. Lau, was given "B11" and a hand-made sample. Accordng to him, the hand-made sample was very similar to the fan in Exhibit P8, except for the three small holes on the top surface at the centre of the fan. These holes were added after the moulds were tested. Therefore in the hand-made sample, there was a full plastic top surface. In "B11", that is not the case. The hand-made sample fell and was damaged at the time of mould making. The fan as made had a full plastic top surface. Mr. Lau had difficulty in explaining this situation. Later, he claimed to have misread the drawing in error. It was suggested that he probably followed the hand-made sample. There were other modifications, like the varying thickness of the vanes adapted to facilitate moulding, and there were no centre points for some radii. The spread of the lower portion of the hollow centre circle of the spindle and the thickness of the overlapping matching pats were also not specified. Mr. Lau. explained, and I accept, that these were matters well understood in general knowledge and experience. Mr. Lau's other explanations were not quite as acceptable. However, he had experienced no obstacle in the mould making process. There is no evidence that he had to resolve any inconsistency between "B11" and the hand-made sample himself or with Mr. Ohto or Mr. Bota. Mr. Lau used the hand-made sample as well as "Bill both with the intent of copying the drawn sketches in "B11". There was no reason for Mr. Lau to suspect that the sample was in any way materially different from "B11". He was given the drawing to make mould. The hand-made sample could not have been expected to be inconsistent with the drawing. Most probably, it was given, so it was submitted, for general reference. Also probably, seeing a full plastic top on the sample, Mr. Lau interpreted "B11" as having also a full top in the course of his attempt to make the mould from the drawing. These are inferences I feel justified to draw. Mr. Lau had also consulted Mr. Beta and Mr. Ohto. Subject to his mistake as regards the top surface, he said that he used the dimensions in "Bill" as "standard". The crux of the matter is that Mr. Lau did not follow, in my view, the hand-made sample but that he sought to implement what he had erroneously interpreted from "Bll". Mr. Nakamura's table shows that the product is very similar to "Bll" for the dimensions taken. Therefore, despite all this, I come to the conclusion that "B11" was sought to be and was in fact substantially copied by Mr. Lau.

"B35" & "B36"

107. I should deal with the 1980 drawings "B35" and "B36" together as the two halves of the motor bracket. It is also convenient to examine here the two alleged lost 1979 drawings for the earlier version. All these drawings were made by Mr. K. T Choy. The 1979 set of drawings which could not be found were handed over to Mr. Lau for making of moulds for Exhibit P19. The 1980 set of drawings for the second version of the two halves of the motor brackets were given, together with a sample of Exhibit P19, by Mr. K.T. Choy to Mr. Wong Yan-ho of the Yick Sang Mould Factory. Moulds were made and the product, Exhibit P18 was produced. There was no material difference between the two sets of drawings in 1979 and 1980 except for tolerance and fitting dimensions. The tolerance and fitting dimensions were revised and slightly corrected, which were the main purpose for the new set. Mr. K.T. Choy also explained that the 1980 drawings were realigned to give a better presentation with improved layout and arrangement. He said categorically that the 1980 drawings, "H35" and "B36", were not tracings of the earlier drawings. Mr. K.T. Choy conceded that P19 from the lost 1979 drawings and P18 from the 1980 drawings were very similar and that it was difficult to discern any real difference between the two. The defendants criticised that the mould maker for drawings "B35" and "B36" was not called. Mr. Lau was given the lost drawings and made P19. He was approached but declined to tool the second 1980 version for P18.

108. The defendants claim that they only copied from P18, the 1980 version and therefore there was no copying of the lost 1979 drawings for P19 at all and that in the absence of any evidence from the mould makers for P18, "B35" and "B36" have not been sufficiently proved to have been used.

109. The defendants admit having copied the 1982 hair-dryers supplied. There is no evidence as to precisely what motor bracket was used for the 1982 delivery, but the defendants' product contains features, some more closely resembling the 1980 second version, i.e. P18 and some more closely resembling the first 1979 version, i.e. P19. The similarities are so striking that they could only be explained by the fact that the defendants must have copied from both versions of motor bracket. In the circumstances, the defendants have, in my view, infringed the copyright in the lost 1979 drawings.

110. As for the 1980 second version, i.e. P18, "B35" and "B36" together with a sample of the earlier 1979 first version i.e. P19 were given to Mr. Wong, the mould maker who was not called. Moulds made and delivered were accepted. If in fact the moulds had been made exclusively from the sample P19, one would have expected complaints to come from Ngai Kwong that the revised tolerance and fitting dimensions had not been incorporated. There was no evidence of such complaint. In my view, the proper inference is that the moulds for P18, the second 1980 version did follow the drawings "B35" and "B36" with their revised and corrected tolerance and fitting dimensions. P18 is thus reproduction of a substantial part of those two 1980 drawings. On the defendants' admission that they copied from P18, the defendants have reproduced a substantial part of each of these 1980 drawings.

111. In the course of his evidence, Mr. Lau produced the metal plate, Exhibit P31(1). He told the court that it was cut in aid of mould making in accordance with the lost 1979 drawings. He explained the manner in which the metal plate was made. He described, in passing, how he was actually measurng the radius of the small circle similar to that in "B36". He had told the court that taking measurement from a copy drawing was undesirable, but he explained that in actual practice and reality, every possible means was resorted to. He set out to affirm his claim that he did work on the lost 1979 drawings, but he found himself hard-pressed to explain the practical side in the process of producing the metal plate, e.g. the absence or deficiency in marked dimensions, his attempts to locate the centre ponts and his failure to provide shrinkage allowance for some radius measurements. His answers were not all satisfactory and I have commented on the quality of his evidence. But there is no escape from the fact that he did map out the dimensions and make that metal plate, and he said categorically that he did not make P31(1) by reference to the hand-made sample.

112. In addition to P31(1), Mr. Lau made further metal plates, such as Exhibit P31(3) for checking the receptive core position and the overlapping parts, Exhibit P31(4) for supplementing it, Exhibit P31(2) for correcting radius position, Exhibit P31(5) for complementing P31(1) when a solid metal plate and not a hallow one was required and Exhibit P31(6) for complementing P31(4). Mr. Lau was, I find, reasonably competent in reading and following drawings. I am satisfied that the lost 1979 drawings were used in the making of the moulds and that Mr. Lau did take a substantial part from each.

113. The divers differences found in the defendants' products are not significant enough to rid the pirated portions of their taken essential features and substance from the 1979 lost drawings and the 1980 "B35" ant "B36". Those differences are, inter alia, the bulge marked in white on Exhibit P18(1), the rear housing of the motor bracket, the internal ribs of the two semi-circular posts for better securing the motor bracket onto the housing half, the chamfer at the edge of the outlet joining the heater barrel, the difference in the contour of P31(1), the slight difference in radius measurement for the round portion of the motor bracket and the sharp corners of the four side windows as opposed to a radius of 1.5.

"B16", "B22", "B58" and "B59''

114. The drawings "b15" and "B16" are for the mica sheets of the big hair-dryer. "B22" is the strengthening piece for these mica sheets. The drawings "B58" and "B59" are mica sheets drawings for the small hair-dryer.

115. The court was told that when the big hair-dryers were first introduced in their DC version in 1977, a lower voltage current was required for the DC motor and therefore electricity was channelled through the heating elements first. In effect, it was a total redesign and rearrangement of the thermofuse and thermostat and the heating elements. A few samples were made for testing and adjustments. The gauge of the coil, the distance between the coils and the pitch i.e. number of coils of the heating elements were modified as was the position of the thermostat which was placed parallel to the coils. The change was different in assembly and quality. "B22" is the drawing for the strengthening piece. I have excluded "B22" drawing as lacking in "originality" and l need not be concerned with it.

116. For the "B58" and "B59" drawings, when the 1,400 watts version of the small hair-dryer was brought in in 1979, the heating elements had to be realigned. The Court was told that there was a hand-made sample and a preliminary dimension drawing.

117. Ngai Kwong had copyright in these four mica sheets drawings. The mica sheets makers were not called to take these drawings from start to finish. No evidence was led as to who instructed the mould makers, what instructions were given or what was handed over. The court was told of the reason for the redesign, the series of tests conducted and finally the making of these mica sheet drawings. Mr. Nakamura was principally responsible for the new circuitry of the big hair-dryer. Mr. Ohto made "B15" and "B16". Mr. K.T. Choy drew "B58" and "B59". Mr. Ohto is dead, but Mr. Nakamura and Mr. K.T. Choy came forward for these drawings. There is no evidence that Ngai Kwong had ever wished its mica sheets to be made from other drawings or reference source. On the contrary, Hiraoka was minded to have this new DC version manufactured and Ngai Kwong was, in effect, instructed to do so. The proper inference is that they were production drawings like the others under consideration and had been so used. The table of Mr. Nakamura shows that the finished products are almost identical with the dimensions in "B15" and "B16", sharing a number of exact dimensions with those in "B58" and "B59". I am satisfied that Ngai Kwong's products had followed these drawings and that by copying those products, the defendants infringed the copyright in each of them.

"B12"

118. This is a complex production drawing. A copy of "B12" was given by Mr. Ohto to Mr. Lee, the supervisor of the mould making factory, in about November 1976. That copy has been lost. Mr. Lee was unable to recollect whether any sample stand was also given, but he said that any sample, if given, would have been made of plastic sheet and unreliable and the drawing must be used. Mr. Lee was, in the main, responsible for giving instructions, supervising, checking and approving the making of the models and moulds.

119. Mr. Lee's recollection of the making of the moulds almost some 10 years agao was less than perfect. He could only recall, in general, the process. However, he checked the moulds and he testified that they were made in accordance with the drawing "B12". There is no evidence that there was any other alternative source.

120. The moulds were produced and marked as P25. They were examined by Mr. Sung of the surveyors firm retained by the defendants. I have explained why the results of the tests were practically of no assistance.

121. Much play was made of Mr. Lee's indirect involvement, the discrepancies, the misreading of the sketches or. "B12", in particular, the aerial view of the stand and the clips. Despite all these criticisms, the fact remains that Mr. Lee had an active supervisory role, that the moulds were completed without any serious obstacles, delivered and accepted and that the product and the drawing "B12" share every likeness in appearance and a great number of dimensions. The variations and discrepancies do not suggest any intention not to copy from "B12"; nor do they have the effect of making the product something significantly different from that drawing in essential features and quality.

122. Examining the similar parts in their proper context with the aid of the data given in Mr. Nakamura's comparative table, Ngai Kwong had taken a substantial part of "B12".

123. The reasonable inference is, as I have earlier concluded, that the moulds must have been suitably modified. There is no evidence to the contrary. There are a great many differences between the moulds P24 and the drawing "B12". The differences are primarily found in linear measurements, radii of various parts, the dimensions of the two clips and in a lower portion of the stand. If I came to the conclusion that there could not have been or had not been any modifications to the mould P24, obviously there would be much to be said for Mr. Rogers' submission that "B12" had not been or had not proved to have been used. But in my view, there must have been modifications as suggested by Mr. Lee, though for many of which he was unable to offer any satisfactory explanation. The moulds must also have been competently modified leaving no detectable flaw for the test carried out in those proceedings.

124. As for Mr. K.T. Choy, he was not involved with these moulds or the drawing. He made it quite clear that he never studied it carefully. He failed to give an instant or satisfactory answer to many questions. In my opinion, his misreading of the aerial view in "B12" is understandable.

125. The defendants coped the stand and they infringed by thus reproducing a substantial part of "B12".

"B38", "B39" and "B40"

126. "B38" is a general arrangement drawing and "B39" and "B40" are drawings for the housing halves of the small hair-dryer. "B38" contains specific references to other drawings Including "B39" and "B40", but both "B39" and "B40" can be readily understood without "B38". These drawings were made by the late Mr. Ohto. Mr. K.T. Choy categorically stated that "B39" and "B40" were intended to be used for mould making. In particular, "B38" was used for cutting steel material. These drawings were all given to the mould maker, Mr. Law of Chee Yui Machine Model Factory. Mr. Law's firm was under contract to make and deliver the housing halves moulds to Ngai Kwong. On the copy plans of "B39" and "B40" i.e. E86(1) and E87(1), Mr. Ohto put down some alterations for Mr. Law. Mr. Law used those copy drawings. The late Mr. Ohto also gave him P32, the wooden model for the handle. It is not quite clear as to precisely when P32, came into the possession of Mr. Law, but according to Mr. Law, drawings were usually supplied first and he referred to P32 only for general shape. The contour of P32 looked the same to Mr. Law as that depicted in the drawings, and he referred to P32 for the handle radii positions and smoothing the portions joining the marked radii dimensions.

127. Mr. Law made metal plates, P33(1) and P33(2), from the drawings, the latter plate being the magnified version from one to two. Mr. Law's evidence was, in essence, a reconstruction of past events. Many criticisms were levelled at his assertion that the drawings were used. Much capital was sought to be made of Mr. Law's unsatisfactory explanations for, inter alia, the radii in front of the handle, the radii for the cross-section oval opening in the metal plate P33(1) [See D10] for the heel/toe level, the use of the wooden sample P32, the various dimensional differences from Mr. Law's own interpretation of the drawings found on P33(1), the internal modifications and alterations and the inconsistent width measurement of the handle between "B39" and "B40". He frankly admitted that "it would be almost a joke to say that the ex-section on P33 (1) was the same as the one shown an drawing "B39"". I have examined all of these with care. In addition to Mr. Law's blunt assertion, I was left in no doubt by the evidence that in the making of the moulds for the small hair-dryer housing halves, these drawings were effectively used but with the handle shifted to the front. Some of the parts and dimensions differ, but this was mostly the result of human imperfections in the mould making process. Mr. Law also could not explain where the radii dimensions of P32 came from, but he was justified by the circumstances in which P32 was given and its general appearance to take its contour as that depicted in drawings. After all, these are not drawings of any sophisticated precision instrument. I accept that Ngai Kwong was expected to and did in fact only look at the smooth general appearance of the finished product. Delivery of the moulds was accepted. In fact, many dimensional differences were not noticeable before detailed measurement had been taken. Whatever internal or other differences there are, the drawings were the only working plans given to Mr. Law. Mr. Nakamura's table gives also an extensive list of similarities.

128. Essentially, apart from the shifting of the handle, the metal plate, P33(1), is substantially the same as the contour in "B39" and "B40". Amendments in writing can be seen in the copies of "B39" and "B40" given to Mr. Law. If it had no longer been required to rely on the drawings, there would have been no need for amending and retaining these copies. There were more drastic changes internally, but the remaining similarities both internally and externally have captured and retained the essential features and substance in these drawings despite all these differences. Ngai Kwong copied a substantial portion of these drawings, and the defendants have, in their pirated version, infringed Ngai Kwong's copyright in them.

"B45"

129. This is a drawing for the switch cover for the small hair-dryer. The drawing with a top view and a cross-section view was made by the late Mr. Ohto and approved by Mr. Ishihara for the purposes of mould-making. Mr. Law testified that this drawing was relied upon. Save for the height of the hump, the measurements taken by Mr. Law and Mr. Nakamura of the dimensions from the product are very close to those marked dimensions on "B45". It was explained that the hump height was subject to constant revision for various switches. There were also portions left unspecified in this drawing, e.g. the two ribs' position and width and the thickness of the non-serrated top part on the hump. These were minor and resolved without much ado, the former on consultation. and the latter by personal experience. Ngai Kwong's product is, I find, a reproduction of a substantial part of this drawing. The defendants have infringed.

"B46"

130. This is a drawing for the hang-up ring. It was made by the late Mr. Ohto and approved by Mr. Ishihara also for mould-making. The drawing, according to Mr. Law, was relied upon, and there was no sample given.

131. This is a delicate piece which has a very peculiar shape and collocation. The cross-section of the ring is not given. The marked total length of 37mm was not strictly followed, and the product was 3mm short. These do not have the effect of depriving the product of the special features and arrangement as drawn. Looking at the product with the aid of the very close measurements taken by Mr. Nakamura, there can be no doubt, in my view, that the mould and the product are both a reproduction of a substantial part of this drawing. The defendants therefore infringes.

"B48"

132. This is a drawing for the rounded air inlet cap. It was made by the late Mr. Ohto, on the instructions of Mr. Ishihara for the purposes of mould-making. Two copies of this drawing were supplied, and they were E90(1) and E91(1). They were relied upon in the mould-making process. Mr. Law could not recollect whether or not there was a hand-made sample. Mr. Law agreed that the inner ring and spokes had different depths. He explained that the difference was introduced for easier mould-making and extraction, but he was unable to recall how the change came about except that it was either from interpretation of the drawing or from Mr. Ohto's instructions.

133. The measurements taken of the product by Mr. Law and Mr. Nakamura are very similar to those marked on this drawing. The product has taken the essential features and substance from this drawing. The defendants therefore infringed.

"B51"

134. This is a drawing for the air outlet ring. It was made by Mr. Ohto for the purposes of mould-making. The drawing was relied upon by Mr. Law's firm, but Mr. Law could not remember whether he was given a hand-made sample. By comparison of the product with the information on this drawing and looking at the measured and marked dimensions, there can be no doubt that the mould and the product have reproduced a substantial part of this drawing. One modification was marked by Mr. Law on exhibit P2(5)(b) in white. That modification serves as a slightly raised additional line for holding the metal grille. Three ribs instead of four on the inner circular surface were made. There is a small raised dot at the front of each recess behind the circular rib, also for the support of the metal grille. All these are slight adjustments for better assembly and fitting. Comparing the portions adopted in conjunction with the fairly similar measurements taken by Mr. Nakamura, the front ring and its mould are a reproduction of a substantial part of this drawing. I conclude that the defendants infringed Ngai Kwong's copyright in it.

"B52" and "B53"

135. They are of the air concentrator, the latter with a pair of slits. "B52" was drawn by Mr. Bota and "B53" by the late Mr. Ohto. They were both made for mould-making purposes and given to Mr. law. Mr. Law could not remember whether he was given a hand-made sample or anything else. Mr. Law said that if he had been given a hand-made sample, it would have been referred to for general shape. The drawing "B52" was relied on. so was drawing "B53".

136. The marked dimensions on "B52" were subject-matter of considerable controversy. Much was sought to be made of an apparent marked dimension of "P36.0". If the distance so marked were truly 36 mm., then with another marked dimension of "R18.0", the overall width of the opening could be demonstrated as being 2 x (36 mm + 18 mm) or 108 mm and not the marked dimension of 72 mm. In fact, if speculation were to be taken to its extreme, another mathematical possibility would be that each side of the width is 2 X 36 mm or 72 mm and that the overall width is 144 mm. Mr. Law was not able to explain the marked dimension "P36.0", but he followed the given total length of 72 mm. Possibly, the marked dimension "P36.0" can be a meaningful figure as it was once explained during these proceedings that the symbol "P" signified the distance from an axis. A further possibility is that the marked dimension "P36.0" is an utter mistake. A sensible arithmatic solution would seem to be. The radius from what would appear to be the centre point of each half of the is 18, two times 18 is 36, and doubling 36 would give you 72, same as the given total width of 72 mm. Mr. Law found no difficuties in this drawing. He sensibly took the 72 mm and had the mould made for delivery. The dimensions of the product are very close to the marked dimensions as shown in Mr. Nakamura's table. The features in the product, when compared with each of these drawings, justify the conclusion that the moulds and the product are a reproduction of each. I find that the defendants infringed the copyright of Ngai Kwong in both.

"B55"

137. This is a drawing of the fan. It was made by Mr. Bota for the purposes of mould-making. The drawing was given to the mould maker and relied upon. Mr. Law could not remember whether any sample was given, but if it had been given, it would have been used for general reference as to shape. I am virtually driven by the features taken and Mr. Nakamura's identical dimensions to the conclusion that the moulds and its product were reproductions of a substantial part of this drawing. The defendants infringed the copyright in it.

"B56"

138. That is a drawing of the. motor bracket for the small hair-dryer. This drawing was made by Mr. K.T. Choy for mould-making purposes. It was given to Mr. Law and was relied upon in making moulds. Mr. Choy was also unable to remember whether a hand-made sample was given to him. In the product, except for the groove, marked white on Exhibit P2(6)(a), the features in the product and Mr. Nakamura's compared measurements have one in no doubt that the product and the moulds were reproductions of a substantial part of this drawing. I conclude that the defendants infringed Ngai Kwong's copyright in it.

139. It would be tedious to set out in full all the comparisons that I have made. In each case, I ignore the unfavourable impression cast by the general resemblances necessarily found in a common household article such as a hair-dryer, but nevertheless the details and features taken are strikingly similar to these in the respective drawings. These salient features and details as drawn are readily noticeable in the products. Almost all the collocations shown in the respect drawings are retained. The dissimilarites that exist are not of sufficient significance when the particular product is looked at as a whole against the respective drawings of the character we have here. Occasionally, some dimensional differences are even great and some modified parts are beyond recognition. Some are added and some completely removed. The pirated parts in a product must be viewed as a whole and in their proper context with, inter alia, all the rest. One must also not overlook the facts that the allegations are of a serious nature and that it is for Ngai Kwong to prove that a substantial part of any one work had been taken. Ultimately it is a question of fact and degree. The conclusion that I have reached in these cases is that both in quality and quantity, the products in court have each taken a substantial part of the respective drawings.

140. I come back to the section 9(8) defence. It is a defence which is "normally difficult to make out". ⁽¹⁷⁾ The onus is on the defendants to establish that the products do not appear to be a reproduction of a substantial part of the relevant drawing or drawings. None of these drawings in which copyright subsists is difficult to understand. Not infrequently, there are actual depictions of items in the drawings themselves. Some of them may well be complicated, but they are not beyond a layman, like myself, who have had no experience in plan or drawing reading since my disappointing effort in an attempt at a rudimentary model aeroplane set at primary school. As far as I am concerned, I need not pretend to be a non-expert or notional non-expert. I am one. With a fair degree of concentration, I have managed to interpret these drawings without too much difficulty, principally because hair-dryers and their component parts are not technical or precision instruments and what seems to be more important is the bare contour that can be reproduced by a reasonably close adherence to given dimensions. I experienced some difficulties with the nail like sketches for the posts 1 to 6 in "B2", but now with basic information that they represent the posts in the six marked positions, I have no longer any difficulty. I had also some difficulty with the top sketch of the hang-up ring in "B5", but having spent a little time in ascertaining it as an aerial view, I have no further difficulties. Apart from those, all the drawings in question are quite plain to me. It may broadly be said to be a test of appearance by comparison. I have no knowledge of or experience in hair-dryers except from shop window display, occasional purchase and in rare trademark litigation. I have tried to disregard any little past experience that I have had. I have shut out from my mind the findings and conclusions that the moulds and Ngai Kwong's products and hence, the defendants copied products, were in fact based on and had taken substantially from the relevant drawings. I have compared the defendants' products with what I am able to visualize a 3-dimensional object from each drawing would look like. Wherever I come across a sectional sketch, I try to interpret it in the light of the associated sketches on the same drawing. I would then imagine as having a sectioned check piece in my hand for this sub-section. In each case, I find no difficulty in reaching the conclusion that the imaginary sectioned check piece is a reproduction of a substantial part, in three-dimensional form, of what is represented in two-dimensional form in the sectional sketch under consideration. See Solar Thomson Engineering Co. Ltd. v. Barton⁽¹⁸⁾. The situation is so obvious to me in my respective attempts that I really need not go into detail. It is encumbent upon the defendants to set up a section 9(8) defence. I am virtually driven to the conclusion in each case that the object in question does appear to me as such a non-expert relating to hair-dryers and their component parts, to be reproduction of my visualized 3-dimensional artistic work as depicted in each of these drawings. The Section 9(8) defence therefore fails.

141. I turn to the plea of innocence. Though the defendants are presumed to know the law, they would succeed on this plea if they believed and had reasonable grounds for believing that their copied products were not infringing copies. Ignorance as to what the law is may be taken into account. I am prepared to accept that the defendants were quite unaware of the legal concept of copyright or copyright in drawings. I do not accept that in the circumstances of this case the defendants would not expect Ngai Kwong to have any drawings for the production of moulds for its product: Mr. Lee, the 2nd defendant, conceded that he was unaware of the existence of any other hair-dryer in the market as close to the plaintiffs'. The defendants decided to place sizable order with Hiraoka and must have realized that Hiraoka was no small concern. They must have thought that the hair - dryers they selected were Hiraoka's own product and, on the agreed fact, Ngai Kwong's product. There was every reason for the defendants to expect Hiraoka to introduce subsequent modifications in competition. Mr. Lee himself sought modifications in circuitry by Hiraoka. Mr. Lee agreed that drawings would have been necessary even with an initial direct copying from an article, if modifications had been envisaged. After all, Kenic had commenced their own hair-dryers production in 1981. Both defendants must have themselves shared the unceasing aspirations of most manufacturers to improve quality and performance. It is inconceivable that the defendants could have entertained any reasonable belief that there were no drawings in existence.

142. Mr. Lee claimed to have no notion of the subsistence of any legal right in respect to the hair-dryers. He was very conscious of such copying as being an unfair practice. Mr. Lee sought to explain the defendants' conduct as follows: In the market and magazines, he, Mr. Lee had in 1982 seen many similar types of hair-dryers with the major difference in the air-inlet and the handle. He found nothing unusual in the hair-dryers ordered, which he described as commonplace articles with more or less the same features though he was driven to concede that there was no one else nearly as close to the plaintiffs' hair-dryers. Mr. Lee attempted to give an instance earlier this year in Canada where he came across a similar hair-dryer, but he had no idea of its origin. He had also come across a Pro 3 and Pro 6 in l982 with similar stepless feature in the heater barrel, slanting Front and handle. At about that time, he had also knowledge of the Pro 6 stand. Further, Mr. Lee relied on the absence of any official registration number on the hair-dryers. Thus, Mr. Lee claimed that he did not therefore think there being any problem in Hong Kong.

143. Mr. Lee, the 2nd defendant, also described the inquiry and investigation that he had made, but those did not go much beyond casual communication with Metro's Australian customers. According to Mr. Lee, the reply was that "in Australia, if there was any copyright problem, they had to publish in newspapers". Their concern reflected fear of possible legal repercussions, but no lawyers were consulted. The 2nd defendant was then a customer of Hiraoka. Hiraoka was never asked as to what rights they claimed or purported to claim in their hair-dryers. There was also no attempted discreet inquiry indirectly made of Hiraoka. It is claimed that Metro never discussed any legal rights concerning the hair-dryers with Kenic. Kenic was merely instructed to copy Hiraoka. The plaintiffs were being kept in the dark when Mr. Lee, the 2nd defendant, contrieved a scheme fur duplicating their hair-dryers at a much lower price for shipment to the same Australian customers. Mr. Lee also explained that the Australian Department Store had. irrevocably committed themselves by widespread advertising for that kind of hair-dryers and that time was pressing.

144. Mr. Lee admitted that Hiraoka had not yet to effect delivery and therefore was not late in honouring its contractual obligation at the time when he set in motion the scheme of pirating this 1982 hair-dryers. The circuitry in the 1982 hair-dryers had been approved by the Australian Safety Board, and the 2nd defendant had contracted to sell to and was about to import into Australia these 1982 hair-dryers. Therefore, what was said to be reluctance and lack of co-operation on the part of Hiraoka to modify the circuitry could provide little incentive for the proposed pirate action. It was greed and, as I shall endeavour to show, reckless greed.

145. Defendant Lee's firm, Metro, was a customer for these 1982 hair-dryers. Mr. Lee, as sole proprietor of Metro and a director of Kenic, was little disturbed by the "unfair" copying so long as he was acting on instructions from Australia. He claimed to have believed that it was not illegal to do so as he allegedly believed that there was no legal right involved. It is true that he was ignorant of copyright and copyright in drawings, but I cannot accept that Mr. Lee could have reasonably believed that there were no drawings for these hair-dryers. "It is not enough for the defendants to 'hope' that the copies are not infringing copies. "⁽¹⁹⁾ His ignorance of copyright could have been removed by consultation with a legal adviser, and his Australian venture certainly merited such a measure and its attendant expenses. If proper legal advice had been sought, Mr. Lee would have been invited to brief his lawyers on the existence or probable existence of drawings. The inquiry that was in fact made was limited and inadequate. In these circumstances, Mr. Lee could not possibly have entertained any reasonable belief that these hair-dryers were devoid of any legal right. Mr. Lee and Kenic through him as a director simply buried their heads in the sand. There was no sound basis for the defendants' alleged belief that no copyright subsisted in respect to these hair-dryers and that their copied versions were not infringing copies. In my view, the defendants could not have reasonably believed, did not truly believe and had no reasonable grounds for believing that their copied versions were not infringing hair-dryers.

146. I turn lastly to Additional Damages under section 17(3). None of the considerations specified in the sub-section is an essential pre-requisite to the making of an order for additional damages. The whole circumstances must be examined.

147. There were certainly benefits accrued to the defendants from this pirate scheme, but infringements as found cannot be said to be flagrant in the sense that they were in fact committed in arrogant disregard of the 1st plaintiff's right. Due to pressure of time and inadequate inquiry, the defendants were reckless. There was little or insufficient element of sheer high-handedness or malace. Conversion damages would be fairly comprehensive, and there is no suggestion that Ngai Kwong could not obtain effective relief in this damages. Hard as he tried, Mr. Liao was unable to name any other heads of damages, not already under the umbrella of his prayer for conversion damages. It is evident that in all the circumstances there is no warrant for any additional damages under section 17(3).

148. I would grant an injunction as sought together with an order for delivery up or destruction of the infringing items and an enquiry as to damages. I would be disposed to accede to an appropriate order for discovery. The proper order is to be drawn up by counsel for the aproval of the Court. Subject to what counsel have to say, I also propose to award costs against the defendants in favour of Ngai Kwong.

(1)    [1916] 2 Ch. 601 at p. 609, per Peterson, J.
(2)    [1944] A. C. 329 at p.340, per Lord Porter.
(3)    [1981] F. S. R. 613 at 621.
(4)    [1979] R. P. C. 551 at p. 569, line 3 to line 14.
(4a)    [1979] R.P.C. 551 at p. 567, lines 10-13, per Whitford, J.
(4b)    [1979] R. P. C. 551 at p. 571 lines 44-47
(4c)     [1979] R. P. C. 551 at p. 622 lines 16 & 17 and line 39, per Lord Wilberforce
(4d)     [1979] R. P. C. 551 at p. 622 lines 35, 36, 38-40, per Lord Wilberforce
(5)    [1964] 1 W. L. R. 273 at pp. 285 & 293, per Lord Pearce.
(5a)    [1964] 1 W. L. R. 273 at p. 276
(5b)     [1964] 1 W.L.R. 273 at p. 293
(6)    [1890] 25 Q.B.D. 99 at p.104 per Wills, J.
(7)    [1979] F. S. R. 619 at p. 627, per Buckley, L. J.
(7a)     [1979] F.S.R. 619 at p. 626
(8)    [1984] F. S. R. 358
(9)    The Times 28th February 1986
(10)    [1980] A. C. 546
(11)    [1985] 2 All E.R. 947
(12)    [1973] 1 R.P.C. 1, at p. 9 lines 42-43
(12a)    [1973] R. P. C. 1 at p.12, lines 44-48
(13)    [1917-23] M.C.C. 219, C. A.
(14)    [1964] 1 All E. R. 241 at p. 249D
(15)    [1984] l. A. C. 74; [1983] 1 A. E. R. 765
(16)    [1985] 1 All E. R. 599
(17)    See para. 3.38 at p. 127, Laddie, Prescott & Vitoria on "Modern Law of Copyright".
(18)    [1977] R.P.C. 537 at 539 lines 19-33, per Buckley, L. J.
(19)    See pares 658 at p. 254, Copinger on copyright, 12th ed.

Representation:

Mr. A. Liao & Mr.C. Luk (Inst'd. by J.S.M.) for Plaintiffs.

Mr. A. Rogers, Q.C. assisted by Mr. J. Yan (Howell & Lo) for Defendants.