HKSAR v. Willtoo Co Ltd

HCMA001222A/2003

HCMA1222/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1222 OF 2003

(ON APPEAL FROM TWS 21785-8 OF 2002)

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Coram: Hon Gall J in Court

Date of Hearing: 10 August 2004

Date of Judgment: 17 August 2004

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J U D G M E N T

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1.By the summons before me the appellant in this matter seeks a certification pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap.484 ("the Ordinance") that there exists in this judgment in respect of the appeal dated 19 March 2004 a point of law of great and general importance which would warrant an appeal to the Court of Final Appeal.

2.No time limit is set within which an application for such a certificate should be made, however, the time for leave to appeal to the Court of Final Appeal is set at 28 days from the date of the decision. This matter is out of time in respect of an application for leave to appeal and that is a matter which must be dealt with by the Court of Final Appeal and not by me given that the power to do so resides in section 32(1) and (2) of the Ordinance.

3.The appellant was charged with four charges of making a statement which was false or misleading in a material particular, namely in a Manufacturer's Declaration on four applications for the issue of Export Licence (Textiles) Forms, contrary to section 36(1)(a) of the Import and Export Ordinance, Cap.60.

4.Mr Bruce, SC, for the appellant, argues that, a point of law of great and general importance requires to be decided to determine what is the standard of reasonableness in the statutory defence in section 36 of the Import and Export Ordinance, Cap.60 and, in particular, if it is the same as that propounded in HKSAR v. Tan Say Seng [2000] 3 HKC 236, and to the extent that section 36 of the Import and Export Ordinance, Cap.60 imports a concept of recklessness, is the form of recklessness thus imported a requirement that the accused person adverted to the risk but nonetheless took that risk or is it upon the basis of some lesser standard.

5.The case of Tan Say Seng dealt with the manner in which the court ought to deal with offences contrary to section 118 of the Copyright Ordinance, Cap.528. Pursuant to section 118(1) a defendant has to prove that he did not know and had no reason to believe that the copy in question was an infringing copy of the copyright work.

6.Beeson J in HKSAR v. Tan Say Seng set out a two-part test as the statutory defence available to a defendant. It is noteworthy that the wording of the statutory defence in both of the Copyright Ordinance and the Import and Export Ordinance are the same.

7.The difference between the two, argues Mr Bruce SC is that section 118 of the Copyright Ordinance by subsection (6) goes on to provide :

"(6) For the purpose of subsections (1)(b) and (3), where a person is charged with an offence under subsection (1) in respect of a copy of a copyright work which is an infringing copy by virtue only of section 35(3) and not being excluded under section 35(4), if he proves that -

(a)	he had made reasonable enquiries sufficient to satisfy himself that the copy in question was not an infringing copy of the work;
(b)	he had reasonable grounds to be satisfied in the circumstances of the case that the copy was not an infringing copy;
(c)	there were no other circumstances which would have led him reasonably to suspect that the copy was an infringing copy,

he has proved that he had no reason to believe that the copy in question was an infringing copy of the copyright work."

Subsection (7) of section 118 then goes on to say :

"(7) In determining whether the person charged has proved under subsection (6) that he had no reason to believe that the copy in question was an infringing copy of the work, the court may have regard to, including but not limited to, the following -

(a)	whether he had made enquiries with a relevant trade body in respect of that category of work;
(b)	whether he had given any notice drawing attention of the copyright owner or exclusive licensee to his interest to import and to sell the copy of the work;
(c)	whether he had complied with any code of practice that may exist in respect of the supply of that category of work;
(d)	whether the response, if any, to those enquiries made by the defendant was reasonable and timely;
(e)	whether he was provided with the name, address and contact details of the copyright owner or exclusive licensee (as the case may be);
(f)	whether he was provided with the date of first day of publication of the work;
(g)	whether he was provided with proof of any relevant exclusive licence."

8.Pointing to these two subsections Mr Bruce SC argues that the standard of reasonableness applied in section 118(3) of the Copyright Ordinance as propounded in Tan Say Seng may not be the same as that propounded in section 36 of the Import and Export Ordinance as the legislature did not see fit to set out how a person charged with an offence under section 36 may satisfy part of the test. The inclusion in section 118(6) and (7) of matters relating to how the statutory defence may be satisfied does not limit the words creating the statutory defence.

9.I find that section 118(6) and (7) do not create a standard or method of satisfying the statutory defence different from that required for section 36 of the Import and Export Ordinance. I do not find that this point is of such great and general importance that it needs to be further argued and decline to certify this matter on that basis.

10.The second matter raised in this summons relates to the finding of the magistrate that the witness who gave evidence for the appellant at trial acted under a wrongful assumption and had failed to properly consider circulars issued governing the cutting and sewing processes of garments and that thereby the appellant was reckless.

11.Mr Bruce SC argues that it is uncertain whether the form of recklessness imported a requirement that the accused person adverted to the risk but nonetheless took that risk or whether it is upon the basis of some lesser standard. He refers me to the case of the House of Lords in R. v. G [2003] 4 All ER 765 where the court considering the issue of recklessness said this :

"... It is a salutary principle that conviction of serious crime should depend upon proof not simply that the defendant had caused (by act or omission) an injurious result to another, but that his state of mind when so acting was culpable. Although the most obviously culpable state of mind was an intention to cause the injurious result, knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such would be readily acceptable as culpable also. It was clearly blameworthy to take an obvious and significant risk of causing injury to another. It was not, however, clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication) one genuinely did not perceive the risk. Such a person might fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment. ..."

12.In the matter before me the actions of the witness went to the factual issue as to whether the appellant had no reason to believe the statements to be false. The actions were neither the result of stupidity or lack of imagination. The witness failed to properly make herself on behalf of the appellant aware of the status of garments under the Ordinance from circulars provided to her. She ought to have done so. She did not fall within the ambit of R. v. G.

13.I find no point of law of great and general importance in this argument.

14.This application is refused.

Representation:

Mr W.S. Cheung, DPGC of the Department of Justice, for the Respondent

Mr A.A. Bruce, SC, leading Ms Emily Cheung, instructed by Messrs Dominic Y.K. Lai & Co., for the Appellant