HKSAR v. Kung Chun Ting

HCMA 13/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 13 OF 2004

(ON APPEAL FROM TWCC 2291/2003)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 24 March 2004

Date of Judgment: 24 March 2004

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J U D G M E N T

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1.The Appellant appeals against his conviction.  He was found guilty after trail of two charges of possession for the purpose of, or in the course of, any trade of business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, this is contrary to s. 118(1)(d) and s. 119(1) of the Copyright Ordinance, Cap. 528.

2.The Prosecution in this trial called several witnesses and the Appellant had given evidence and also his co-defendant D3 also gave evidence.

3.The prosecution case was that PW1 and PW2 had entered the flat in which the Appellant was in.  After arresting the 1st Defendant outside the flat as he was leaving, inside the rucksack of the 1st Defendant was found the infringing copies that is set out in charge 1.  PW1 was the first to enter the flat and he noticed a shadow and had chased the shadow to room 2.  The door to the room 2 was then banged shut and he then knocked on the door revealing his identity for two to three times but there was no response and therefore he kicked the door open.  Inside the room he saw the Appellant and D3.  He noticed that there was a TV and a DVD player inside the room and some DVD covers.

4.PW3 also followed PW1 into the room and while PW1 was dealing with the Appellant, he dealt with the 3rd Defendant.  Inside the flat in another room was found a large quantity of infringing DVDs and that room was called Room 1 in the trial and those DVDs were the subject matter of the second charge.  Subsequently, the Appellant was cautioned and arrested and under caution, the Appellant said that he was there to visit the 3rd Defendant.  PW1 then took the Appellant to Room 1 to view the exhibits.  It was alleged in the trial by the defence that some DVDs were taken from Room 1 and put into Room 2.

5.A fingerprint expert was called in and the Appellant’s fingerprints were found on 3 DVDs plastic covers in Room 1.  The learned Magistrate found PW1 to be an honest witness although he did find that some parts of his evidence was not accurate.  For example, the learned Magistrate noted in paragraph 7 of his Statement of Findings that PW1 originally said that the Appellant had said nothing under caution but subsequently in cross-examination, he agreed that the Appellant did answer some questions and these answers had been recorded into his notebook.

6.The leaned Magistrate was careful in assessing PW1’s evidence because he looked for corroboration of his evidence and found that corroboration in the evidence of PW2.  As to the place of arrest of the Appellant, PW1 and PW2 said this was done in Room 2.  PW3 said that each Defendant had been taken to the outside of Room 1 and told they were suspected of being connected with the DVDs and it was then that they were arrested and cautioned.

7.The learned Magistrate found that both the Appellant and D3 were arrested and cautioned outside what he called the DVD room, presumably, he meant Room 1.  The learned Magistrate was satisfied that this discrepancy arose because the two rooms are very close together, it all happened quite quickly and reminder cautions were also administrated for the post records taken after this event.  But ultimately, he did not find that this discrepancy affected his belief of the accuracy of PW2 and PW3’s evidence.  He found PW2 to be honest and reliable and he also found PW3 to be honest and reliable and accepted his evidence.

8.The learned Magistrate then went on in his Statement of Findings to deal with the evidence of the Appellant.  The Appellant’s evidence is that he was a tenant of D3 in Room 2, he went there to eat and watch videos, and he had used the room 3 times previously for sleeping with his girlfriend.  He claimed that on that day he had arrived at the place sometime after 2:00 p.m.  When he was inside the room, he heard a lot of noise, somebody bumped on the door and then he was pressed onto the floor and handcuffed.  He knew nothing about Room 1 because the door was always closed.  After his arrest, he did not see the DVDs and they had not been pointed out to him.  He had seen the 1st Appellant after his arrest and that was the first time he had seen the 1st Defendant.  He had no idea why his fingerprints were found on the DVD cover in Room 1.  He had nothing to do with the DVDs in the 1st Defendant’s rucksack.

9.The learned Magistrate did not believe the Appellant because what the Appellant said in court was contrary to what he had said in his record of interview which he had admitted was made voluntarily.  He also disbelieved the Appellant when he said he had gone to the flat sometime after 2:00 p.m. on the date of the arrest because the learned Magistrate found that the flat had been under surveillance over that time and no mention was made by any of the witnesses that they had seen anyone entering the flat during this time.  And so for the reasons which had been set out in the learned Magistrate’s Statement of Findings which I will not go into here, at the end of the day he rejected the Appellant’s evidence.  So on that basis, he then proceeded to draw the necessary inferences.

10.The learned Magistrate then concluded that the 2nd Defendant was inside the flat at the material time, the door to Room 1 was not locked and it was opened.  Fingerprints of the Appellant were found on DVD covers inside Room 1, coupled with the fact that the learned Magistrate rejected the explanation of the Appellant, and the Appellant had keys to the flat and to Room 2 and so the learned Magistrate drew the necessary inference that he was therefore guilty of joint possession of the infringing copy of DVDs find inside Room 1.

11.The Appellant who appears in person submits that there was no sufficient evidence to convict him of both charges 1 and 2 and that the learned Magistrate had failed to properly consider the discrepancies between the prosecution witnesses as to when he was taken to Room 1 and also that the learned Magistrate did not say why he disbelieved him and did not fully consider the fact that he was a student.

12.As far as the discrepancies are concerned, the learned Magistrate was aware of the discrepancies between the prosecution witnesses, he resolved the discrepancies and gave reasons for them.  As to why the learned Magistrate did not believe the Appellant, he also gave reasons why he did not believe the Appellant and basically it was because that certain parts of his evidence in court were contrary to what he had told the police in his record of interview which he has said was voluntary.  There were other reasons given as to why he did not believe him but I will not go through them here.

13.So at the end of the day, the learned Magistrate was entitled to find that the evidence was sufficient for him to draw the necessary irresistible inference in the case that the Appellant was in joint possession with the other two Defendants of the DVD inside Room 1.

14.As for charge 1, the only evidence against the Appellant is that he was inside the flat from which the 1st Defendant had emerged with his rucksack inside of which was found the infringing copies in charge 1.  There is no other evidence to show that he was in joint possession of those infringing copies or that those infringing copies were indeed taken from the flat in which the Appellant was in.  As the Appellant pointed out no fingerprint of his was found in those copies in the rucksack.

15.So at the end of the day, it is impossible to be sure that these infringing copies came from the store of infringing copies in the flat.  Without other evidence, an inference could be drawn that these infringing copies were in fact brought in the rucksack by the 1st Defendant to the flat and then he left with them.  This is only one of the many inferences that may be drawn.  So in those circumstances, I find therefore that there is no sufficient evidence from which the learned Magistrate could draw an irresistible inference that the Appellant was in joint possession of the DVDs in the rucksack in charge 1, and Mr Leung very correctly also conceded this point.

16.So the appeal is allowed on charge 1.  The conviction of the Appellant is quashed on charge 1.  But as for charge 2, the conviction remains and the appeal is dismissed in relation to that charge.

Mr David Leung Cheuk-yin, SGC, of the Department of Justice, for the Respondent

The Appellant, in person