HKSAR v. Tse Mui Chun

CACC000557B/2001

CACC 557/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 557 OF 2001

(ON APPEAL FROM DCCC 556 of 2001)

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Coram: Hon Stuart-Moore V-P, Stock JA and Gall J in Court

Date of Hearing: 14 February 2003

Date of Judgment: 14 February 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1On 7 November 2002 this Court dismissed an application for leave to appeal against the applicant's conviction in the District Court of several offences under the Copyright Ordinance, Cap. 528. Immediately after the delivery of our judgment, Mr Grounds who then represented the applicant, intimated an intention to seek a certificate under section 32(2) of the Court of Final Appeal Ordinance, Cap. 484 that a point of law of great and general importance was involved in the decision. That application is now pursued by Notice of Motion.

2The point which we have been asked to certify is this:

"To what extent is hearsay evidence admissible in criminal proceedings by virtue of the Copyright Ordinance, Section 121?"

3That is a rather widely drawn question, to which aspect we will return, but the point arises in this way. In the trial in the District Court the prosecution sought to prove copyright by production of two affirmations, purportedly pursuant to the provisions of section 121 of the Copyright Ordinance. One of the points taken on appeal was the admissibility of that evidence. The affirmation of Mr Lam (PW2) was that he was a supervisor of the Hong Kong Film and Video Security Limited, a subsidiary of the US Motion Picture Association of America. He said that he was authorised to make the affirmation on behalf of Disney Enterprises who, it was said, were the owners of the copyright in various films listed in a schedule to the affirmation. Similarly in the case of a Ms Tsang (PW4). An affirmation from her was produced, by which she said that she was employed by the International Recording Copyright Limited and was authorised to make the affirmation on behalf of Sony Music Entertainment Inc. (Canada), the owners of copyright in a song specified in the schedule.

4The applicant's legal advisers had served a notice under section 121(5) of the Ordinance for the attendance of the deponents. This does not automatically trigger the attendance of a deponent, but only if as a result of it and in the circumstances of the case the court is satisfied that there is indeed a genuine issue as to copyright ownership (section 121(8)(b)). In this case the deponents were called by the prosecutor under section 121(8)(a).

5A number of points were taken on appeal as to the consequences of the service of the subsection (5) notices, and whether the judge appreciated what those consequences were. One ground as framed in the amended perfected grounds of appeal was that:

"Since the prosecution had called PW2 and PW4 to give evidence, they were not entitled or could no longer rely upon hearsay testimony to prove copyright ownership." (Ground 1(3));

a point which we answered at paragraph 24 of the judgment, by asserting that the affirmations stood side by side with the oral testimony in this case, especially since the prosecution called the witnesses to deal with matters additional to, or apart from, those addressed in the affirmations (see paragraph 24 F-H of the judgment). That was, we perceived, the emphasis of the ground as framed.

6We addressed the hearsay aspect of the ground at paragraph 25 of the judgment and this is what we there said:

"Finally, on the hearsay aspect of copyright ownership, Mr Grounds argues that section 121 does not in any event permit the affirmation to contain hearsay evidence; that it envisages that where a deponent is not himself the copyright owner, the deponent must himself have direct knowledge of the copyright. He cannot, it is argued, rely on what he has been told by, say, the copyright owner and then pass it on to the court in an affirmation. We do not agree. The answer lies, as is so often the case, in the section itself. The section permits the giving of evidence by an individual on behalf of the copyright owner. Ownership is presumed proved if such a person makes certain statements, the nature of which is specified in the section. The fact is that both PW2 and PW4 tendered their testimony on behalf of the copyright owners and said that they had been authorised to do so. The statutory conditions were fulfilled. It was never suggested otherwise. The statutory conditions having been fulfilled, that is the end of the matter."

7This is the aspect upon which this application is concentrated. The essence of the argument presented by Mr Bullett is that section 121 envisages that the deponent of an affirmation deposes to facts within his own knowledge, and not to matters outside his own knowledge which have been passed on to him by the owner of copyright or the owner's direct employee. Were this not the case then:

(1) a defendant would be deprived of the ability effectively to cross-examine a deponent, and would thereby be deprived of the rights guaranteed by Articles 10 and 11 of the Bill of Rights Ordinance, Cap. 383 (and no doubt, he would add, the corresponding provisions of the ICCPR);

(2) section 121(4) would speak not of "knowledge and belief" but of "information and belief" (indeed he points out that the deponents in this case used the phrase "knowledge, information and belief" rather than the prescribed phrase); and

(3) the protection afforded to a defendant would be less than that afforded to a party to civil proceedings. See the Rules of the High Court, Ord. 41 r 5.

8Paragraph 25 of the judgment of this Court does not expressly address the arguments as thus put; and they are points that, in our judgment, are reasonably arguable. The point raised is no doubt one that is involved in the decision. The remaining question therefore is whether it is a point of law that is of great and general importance. If, as we believe, the practice is for affirmations under section 121 to be made by officers in Hong Kong of copyright protection organisations, rather than by the copyright owner or his employee, that practice, would, if Mr Bullett's submissions prove correct, have to be changed so that in many cases the deponent would necessarily be an overseas resident whose attendance in Hong Kong would be required in the event that the provisions of section 121(8)(b) came into play. We think, on balance, that this is a matter of great and general importance, for which reason a certificate should be issued.

9As we have intimated, we are troubled by the width of the question posed and have canvassed with counsel a more suitable question. It is concluded that a more appropriate question would be as follows:

"In an affidavit produced under section 121 of the Copyright Ordinance, is evidence of copyright ownership admissible from an agent appointed by the copyright owner to attest to that ownership where the fact of the ownership is not within the agent's knowledge save from information provided to him by the copyright owner?"

10Our judgment was delivered on 7 November 2002, and the Notice of Motion is dated 9 December 2002. The written form of the judgment was received by the applicant's solicitors on 3 December, when Mr Grounds was unwell. In these circumstances, we grant the necessary extension of time under section 33(2) of the Hong Kong Court of Final Appeal Ordinance.

11Accordingly, we grant a certificate in terms of the question as re-phrased.

Representation:

Mr Andrew Bullett instructed by Messrs Peter Cheung & Co. for the Applicant

Mr R G Turnbull, SADPP and Mr David Leung, SGC of the Department of Justice for the Respondent

Remarks:
Application by the Applicant to Court of Final Appeal for decision on 2 points of law which was made in favour of respondent but Applicant's convictions. Please see appeal judgment of FACC000004/2003.