HKSAR v. Hang Chi Lok

HCMA1138/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1138 OF 2005

(ON APPEAL FROM FLCC 584 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 4 January 2006

Date of Judgment : 4 January 2006

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J U D G M E N T

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1.This is an appeal against conviction only.

2.The appellant was convicted after trial of an offence of importing into Hong Kong infringing copies of copyright works, being 40 video discs and 19 audio discs, contrary to section 118(1)(b) of the Copyright Ordinance, Cap.528.  He appeals on the general ground that his conviction was against the evidence.

3.The facts of the prosecution case were not in dispute.  The appellant had been intercepted at Lo Wu as he was carrying into Hong Kong various discs on a trolley.  The total number of discs he was found to be carrying was 882, of which, 59 were the subject of the charge.  There was no evidence concerning the copyright status of the balance of the discs.

4.The offence under section 118(1)(b) is one of strict liability, and on those facts the offence is made out.  What remained for the appellant was to establish the statutory defence provided in section 118(3).

5.The defence of the appellant was that a Mr Tsui had asked him to take the discs from Shenzhen to Hong Kong.  The appellant, after being given the discs by Mr Tsui at Shenzhen Railway Station, was to re-deliver them to Mr Tsui at Fanling Railway Station in Hong Kong and receive a reward of $200.  To satisfy himself that the discs were not infringing copies, the appellant said in evidence that he asked Mr Tsui “whether or not the discs were infringing copies” and was told that they were not.  Additionally, the appellant said in evidence that he personally checked the contents of one of the two boxes the discs were contained in, but did not have time to check the other box.

6.On that basis, the appellant argued before the magistrate that he had taken sufficient reasonable steps to satisfy the statutory defence.  The terms of that defence is set out in section 118(3) of the Ordinance as follows :

“It is a defence for the person charged with an offence under subsection (1), to prove he did not know and had no reason to believe that the copy in question was an infringing copy of the copyright work.”

The offence must be established on the balance of probabilities.

7.Section 118(6) provides that, for the purposes of an offence under subsection (1)(b) and of the defence under subsection (3), it is sufficient for a defendant to prove 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...”

8.In my view, those matters are conjunctive, that is, all must be proven.  There is no other sensible way to read the provisions of section 118(6).

9.Certain matters may be taken into account by the court in determining whether the charged person has established under subsection (6) that he had no reason to believe that the copy or copies in question were copyright infringing copies.

10.These are the matters set out in subsection (7) of the Ordinance :

“(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.”

11.Those matters are not exclusive, and a court may take into account any other relevant matter.  That is the law as it relates to the present case.

12.In respect of all of this the magistrate, in her verdict, said :

“13. In deciding this matter, I must look at what enquiries the defendant has made and assess whether, on an objective standard, he had done that which, in the circumstances, reasonably could be required of him.

14.  Mr Tsui had requested the defendant to deliver these discs.  The defendant did not know who Mr Tsui was, not did he know his telephone number.  He would wait at the Customs in Shenzhen for someone to inform him to make a delivery.  He had delivered the goods for Mr Tsui once or twice before.  There was no problem with those deliveries.

15.  For the defendant to ask Mr Tsui whether these discs are infringing discs is in my view wholly insufficient and inappropriate.  This is an utterly unsatisfactory enquiry and is not one envisaged as one of the factors as laid down in the ordinance.  It is unreasonable to rely on an answer given by Mr. Tsui, someone who the defendant does not even know and does not even know what trade or business he is in and is someone whom has asked him to make a delivery for him.

16.  If to make enquiries from a person like Mr.Tsui is sufficient, that would make a completer farce of the law as well as the factors as laid down in section 118(6) and (7) of the ordinance in assessing whether a person had made reasonable enquiries or had reason to believe.  The factors laid down in section 118(7) are detailed and numerous but not limited.  None of the steps suggested in sub-section (7) were taken by the defendant.  So on that limb alone, he fails.

17.  The defendant was cautious enough to ask if they were infringing copies, he therefore knew of the existence of infringing copies, he was alert to the fact of infringing discs, a no problem reply in relation to his query from Mr. Tsui is wholly unreasonable and inadequate.”

13.In my view, the magistrate properly assessed the evidence and the issues relating to the appellant’s defence under section 118(3) of the Ordinance.

14.In many, perhaps most cases, it is plainly insufficient for a defendant charged under the provisions of section 118(1)(b) in seeking to establish a defence, pursuant to section 118 by way of subsection (6) and (7) simply to assert or even prove that he asked the person for whom he was importing discs into Hong Kong whether they were infringing copies.  In virtually all cases, he would simply be told that they were not.  As I say, in most cases, that will be insufficient to establish the statutory defence.

15.In the present case, it could not even begin to be sufficient.  The appellant was given the goods in circumstances where he was effectively being asked simply to bring the discs through Lo Wu from Shenzhen.  One he crossed the border, he was to return them to Mr Tsui, a person whose phone number he claimed not to know.  These were, and must have seemed to the appellant to have been, very suspicious circumstances.

16.The appellant’s further claim in evidence that he tried to check the contents of the boxes but had succeeded in checking only one box and had then run out of time was rejected by the magistrate as it was inconsistent with the admission made by the appellant in his record of interview to the effect that he only had a superficial look at the contents of both boxes.  And I might add before me he said he had more thoroughly checked the contents of the boxes and had not thought they were infringing discs.

17.But in any event, the magistrate was entitled, on the inconsistent evidence before her, to place no weight on the assertions of the appellant that he checked the contents of one of the boxes.  She was entitled to conclude that he had not taken reasonable steps to ascertain the nature of the discs he was to carry across the border.  That meant the appellant’s defence could not succeed and no complaint can be made of the magistrate’s rejection of it, and her consequent conviction of the appellant.

18.The appeal is dismissed.

Ms Laura Ng, GC of the Department of Justice, for HKSAR

Appellant in person