HKSAR v. Lee Nim Chi

CACC000044/2001

CACC 44/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 44 OF 2001

(ON APPEAL FROM DCCC 1052 OF 2000)

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Coram: Hon Stuart-Moore, Acting CJHC, Mayo VP and Stock JA in Court

Date of Hearing: 20 July 2001

Date of Judgment: 20 July 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1.The applicant was convicted on one charge of being in possession for the purpose of trade or business of infringing copies of copyright works without licence of the copyright owner, contrary to section 118(1)(d) of the Copyright Ordinance, Cap. 528 after a trial in the District Court before H.H. Judge Line. He was sentenced to 15 months imprisonment. He seeks leave to appeal against his conviction and sentence.

2.The facts were very simple. On the morning of 19 October 1999 Customs Officers were keeping premises at the Shatin Industrial Centre under surveillance. A light goods van registration number HW 1393 belonging to the applicant was parked outside the premises.

3.The officers saw a man who it subsequently transpired was the applicant outside the factory premises near the van and arrested him. They entered the premises which appeared to be a small factory manufacturing CDs both visual and audio. After a period of between 5 to 10 minutes the officers searched the van and found the 138 CDs which are referred to in the charge. The box containing the CDs was closed and sealed. The officers opened the box which also contained a list. The particulars and numbers in the list corresponded to particulars and numbers in documents seized when the premises were searched.

4.Two factories operated in the premises in question. The applicant was a director and shareholder of one of these factories Victor Video Distribution Company Limited ("Victor Video"). It has to be added that it appeared from the evidence that the 138 CDs had emanated from the other factory. That is the one in which the applicant does not appear on the face of the records to have had any interest. However, the Judge was satisfied in all the circumstances that the applicant would have been fully aware of the existence and nature of the operations being conducted in these premises.

5.When the applicant was arrested he admitted that he was there to collect goods.

6.The Judge accepted that there were conflicts in the evidence of some of the officers as to exactly what the applicant was carrying at the time of his arrest and whether he was physically accompanying a trolley containing 13,000 other CDs.

7.However be that as it may the Judge confined himself to the questions as to whether the 138 disks came from the factory and whether the applicant was aware of the contents of the box in the van.

8.On the first question the Judge was satisfied that no one else had placed the box in the van during the 5 to 10 minutes interval when the van had not been attended. As already indicated the Judge was satisfied at the appropriate level that the applicant was aware of the contents of the box.

9.There was no question of there being any licence extant.

10.The applicant did not go into the witness box.

11.The first and second grounds of appeal can conveniently be dealt with together.

12.The first is that the Judge erred in finding that the applicant had been in possession of the CDs found in the van. The second ground which was connected to it was that the Judge failed to take cognizance of the fact that a large volume of CDs which had been found in the premises of Victor Video (that is the company the applicant had an interest in) had not been found to be infringing copies.

13.The Judge was fully aware of this. He was entitled in all the circumstances to draw an inference that the applicant was aware of the fact that the infringing copies came from the other factory. There was also ample evidence to enable the Judge to infer that the applicant had been in possession of the 138 CDs found in his van.

14.The third ground is that the Judge failed to resolve the inconsistencies in the evidence of the different Customs and Excise Officers when they arrested the applicant. We accept that the Judge was entitled to confine himself to the essential evidence in the case and that there was no necessity for him to attempt to resolve inconsistencies in relation to matters which did not go to the heart of the case. What was important was that the Judge did not consider that the inconsistencies were such that he could not generally place reliance upon the evidence of these witnesses.

15.The fourth ground has been abandoned.

16.The conviction was in no way unsafe or unsatisfactory and this application is dismissed.

17.The applicant also seeks leave to appeal against the sentence of 15 months imprisonment imposed upon him.

18.This was a serious offence. All of the evidence was consistent with his distributing the CDs in question. The applicant was an active participant in a fairly sophisticated operation. The sentence imposed was neither manifestly excessive nor wrong in principal and this application is also dismissed.

Representation:

Ms Mary Sin, SADPP of the Department of Justice for the respondent

Mr Albert Luk, instructed by Messrs Terry Yeung & Lai for the applicant