HKSAR v. Chui Kwok Keung and Another
Read the full judgment text of CACC 13/1999 on BabelCite. This Court of Appeal judgment was delivered on 30 August 1999 before Nazareth VP, Wong JA, Keith JA.
Criminal law – copyright – possession of infringing copies for the purpose of trade or business – Copyright Ordinance (Cap.39) s.5(1) – elements of the offence – meaning of possession – whether possession requires knowledge that the items are VCDs and CDs – statutory defence of innocent possession – whether trial judge erred in defining possession as only custody or control – whether trial judge made sufficient findings on the applicant's knowledge of the nature of the items – whether inferences of guilty knowledge were properly drawn on the facts – whether a charge joining VCDs found in the applicant's rucksack and VCDs found inside the premises was duplicitous – application for leave to appeal against conviction – Court of Appeal refusal of leave. The applicants faced two joint charges under s.5(1) of the old Copyright Ordinance, Cap.39, of possession for the purpose of trade or business of infringing VCDs and CDs. On 20 June 1997, customs officers observed the 1st applicant leaving a Mongkok flat with a rucksack containing 1,024 VCDs, and found two keys to the flat in his pocket. Inside the flat, over 80,000 VCDs and CDs were seized, of which 60,339 VCDs and 4,948 CDs were found to be infringing copies. The 2nd applicant pleaded guilty; the 1st applicant claimed to be a mere courier. Held, refusing the application: (1) Possession under s.5(1) requires custody or control with knowledge of the nature of the items. Reading the Reasons for Verdict as a whole, the trial judge adequately addressed the knowledge element, and properly inferred that the 1st applicant knew the items in the rucksack and the flat were VCDs and CDs, given the open stacking in the rooms, the keys he held, and his prior visits to the flat. The judge also separately addressed the statutory defence under s.5, correctly placing the burden on the applicant on a balance of probabilities, and did not confuse knowledge of the items with knowledge of their infringing character. (2) The first charge was not duplicitous: the VCDs in the rucksack and inside the flat were found in a single continuous search at the same time and place, and a single charge properly reflected the overall criminality. No objection was taken at trial and no prejudice was shown. Application for leave to appeal against conviction refused.
Legal issues: Adequacy of trial judge's definition of possession and treatment of mens rea for s.5(1) Copyright Ordinance · Whether the first charge was duplicitous for joining VCDs found in the rucksack and inside the flat
Outcome: Application for leave to appeal against conviction refused; both Grounds 1 & 3 and Ground 2 dismissed.
Cited by 8 cases
|
CACC000013/1999 CACC 13/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 13 OF 1999 (ON APPEAL FROM DCCC 1123 OF 1998)
------------------- Coram: Hon Nazareth, V-P, Wong & Keith, JJA in Court Date of Hearing: 10 August 1999 Date of Delivery of Judgment: 30 August 1999 ---------------------- J U D G M E N T ----------------------- Wong, J.A. (giving the judgment of the Court): 1. The applicants faced two joint charges under s.5(1) of what has been referred to as the old Copyright Ordinance, Cap.39. The old ordinance has now been replaced by the Copyright Ordinance, Cap.528 which came into operation on 27 June 1997. The offences to which the present appeal relate were committed on 20 June 1997 and the charges were therefore brought under the old ordinance. Be that as it may, the only relevance between the old and the new ordinances, in so far as this case is concerned, goes to sentence, with which we are no longer concerned following the withdrawal of his application for leave to appeal against sentence by Tam Ka Kui, the 2nd applicant. The trial took place before Her Honour Judge Toh in the District Court. The 2nd applicant pleaded guilty to both charges at the outset and was sentenced to a total of 15 months' imprisonment. Chui Kwok Keung, the 1st applicant, pleaded not guilty to both charges and was convicted after trial and sentenced to two years' imprisonment in total. 2. The 1st applicant applies for leave to appeal against conviction. We will deal with his application. 3. The charge sheet which contains two charges reads as follows :-
CHUI Kwok-keung and TAM Ka-kui, on the 20th day of June, 1997 at Front Portion, 3/F, 21 Dundas Street, Mongkok, Kowloon, in Hong Kong, had in their possession for the purpose of trade or business 4,948 compact discs being infringing copies of sound recordings in which copyright subsisted." 4. The facts are simple. Customs officers gave evidence that on 20 June 1997 they were keeping observation in the staircase outside the 3rd floor of 21 Dundas Street, Mongkok. Shortly after they took up their positions, they saw the 1st applicant leaving the flat with a rucksack on his back. He was stopped and taken back to the flat by the officers. There was no furniture inside the flat except a cardboard box and stacks of video compact discs (VCDs) in a room shown on the left of a photograph. The same photograph depicts another room on the right, again with stacks of VCDs and cassette discs (CDs). The rooms were not locked. At the time of entry, the room on the left was closed and as for the room on the right it was not completely closed off. The officers said that when they entered the flat the stacked VCDs on the floor in the room on the right were visible to them. From this, the judge drew the inference that the 1st applicant must have clearly seen the VCDs when he was inside the flat prior to leaving. 5. A search was conducted. Inside the rucksack were 1,024 VCDs and in one of the trousers pockets of the 1st applicant the officers found two keys which fitted the iron grille and the wooden door of the entrance to the flat. The 1st applicant was arrested. The flat was searched and a total of over 80,000 copies of VCDs, and this includes the number found in the rucksack, were seized. On subsequent examination, 60,339 VCDs were found to have infringed copyright and 4,948 CDs were found to have infringed the copyright of the sound recording. 6. The 1st applicant elected to give evidence. He said that he had been working for the 2nd applicant as a courier or mover and had been to the flat about six times before 20 June. The last time he was there was on 19 June. He was never told to move things from the flat, only to move boxes up there from the ground floor after they had been delivered. He had no idea what was inside those boxes. On 20 June, because the 2nd applicant was short-handed, he was told to go up to the flat to carry the rucksack down to the ground floor and he thought he was to give it to the 2nd applicant. He did not know what was inside the rucksack and he had never looked into the two rooms shown in photograph 11, P1. He said both rooms were locked and sealed shut. He also said that when he was pushed into the flat, his head hit the wall and he lost consciousness so he could not see the room being opened and his rucksack being searched and the contents taken out. 7. The judge rejected his evidence and found the charges proved against him. 8. The 1st applicant makes three complaints in his Amended Perfected Grounds of Appeal Against Conviction. Mr Cheng Huan, SC, who appears for the 1st applicant before this Court, invites us to deal with Grounds 1 and 3 together as they are closely inter-related. We will proceed on this basis. These are the Grounds.
9. The point raised by Mr Cheng Huan in argument is a short one. He submits that the judge failed to direct or misdirected herself on the meaning of possession. It is wrong to define possession in the way she did and that is "possession does not mean ownership, only custody or control". In the context of this case, Counsel says that possession means custody or control with knowledge, i.e. that the 1st applicant knew what were in the rucksack and the flat were VCDs or CDs. Mens rea is, therefore, an important ingredient of the offence created under s.5(1). Counsel refers to the statutory defence in s.5 which provides that once "a person is found to be in possession for trade or business any infringing copy of a work in which copyright subsists shall unless he proves to the satisfaction of the court that he did not know and that he had no reason to believe that it was an infringing copy of any such work shall be guilty of an offence". Counsel also submits that the judge had probably confused knowledge of the contents in the rucksack and the flat with knowledge that they were infringing copies. The judge was thinking, he argues, that s.5 creates a double presumption and once the 1st applicant was found to be in custody or control of what were in the rucksack and the flat, he would be presumed to know that they were VCDs and CDs. Furthermore, he is presumed to know that they were infringing copies. Clearly, this cannot be the case. He says that the judge had not addressed or properly addressed her mind to this vital element of the case. He further submits that the evidence in this case is not sufficient to draw inferences of guilty knowledge. 10. Section 5(1) of the Copyright Ordinance (Cap. 39) provides, so far as is material :
11. In order to bring home a charge under the section, it is incumbent on the prosecution to prove that
This last element can be proved by circumstantial evidence, e.g. the quantity and value of the VCDs and CDs and in this case it would not be too difficult to draw such an inference. Once the prosecution has proved all the three elements beyond reasonable doubt, then and only then the burden shifts to the 1st applicant to avail himself the statutory defence under s.5 that he did not know and he had no reason to believe that the VCDs and CDs found in the rucksack and the flat were infringing copies. He only needs to discharge the onus of proof on a balance of probabilities. 12. The definition on possession given by the judge, if it stands alone or if the judge had stopped there, is clearly inadequate and defective. The question is does it stand alone or did the judge stop there. The answer must be "No". Both before and after the judge said "possession does not mean ownership, only custody or control", she had referred to evidence which could only be relevant to the issue of knowledge. In the Reasons for Verdict at page 20 F-H, she said :-
At the same page S-T :-
At page 23 B-J :-
13. Although the judge did not expressly state that she found that the 1st applicant saw the VCDs and CDs and therefore knew what they were, these passages could serve one purpose and one purpose only and that is that the 1st applicant had knowledge that what were inside the rucksack and the flat were VCDs and CDs and that he had custody or control of them. We are in no doubt that that was what she in fact found. If she had not been sure, she would have said so. 14. Reading the Reasons for Verdict as a whole, it is not possible that she could have confused knowledge of what were in the rucksack and the flat with the statutory defence of knowledge of infringing copies. At the end of her Reasons for Verdict, she said at page 23 R-S and page 24 A-B :-
15. Here what the judge was saying is that once the prosecution had proved that the 1st applicant was in possession of the VCDs and CDs in the rucksack and the flat in the sense that he had custody or control of them and he knew that they were VCDs and CDs, the 1st applicant can fall back on the statutory defence that he did not know and had no reason to believe that the VCDs and CDs were infringing copies. He needs only to discharge the burden cast upon him on a balance of probabilities. It is very clear to us and we do not think that the judge could have in the slightest degree misunderstood or confused. 16. All the ingredients of the offence having been present and proved, the judge was perfectly entitled to come to the conclusion that the 1st applicant had knowledge of what were in the rucksack and the flat were VCDs and CDs and that he had custody or control of them and they were infringing copies which the 1st applicant had possession for the purposes of trade or business. 17. Grounds 1 and 3 therefore fail. 18. Ground 2 relates to the first charge only. It reads :-
19. Apart from what is stated in the written amended ground, no arguments have been advanced before us nor is there anything in Counsel's skeleton submission. No authorities were cited. All Counsel says about this Ground is that it is unsafe and unsatisfactory. 20. There was no objection taken at the trial that charge one was bad for duplicity. No complaint is made before us that the 1st applicant has been prejudiced or injustice has occurred as a result. 21. As the finding of the VCDs in the rucksack and the flat was so close both in time and place, it is entirely proper to prefer one charge instead of two separate charges. In this way, it serves to better reflect the overall criminality. 22. There is no merit in this Ground and must be dismissed. 23. In the result, we refuse the application.
Representation: Mr Robert S.K. Lee, S.A.D.P.P. and Mr David Leung, S.G.C., for D.P.P./HKSAR Mr Cheng Huan, S.C. and Mr A.M. Omar, inst'd by M/s Paul Kwong & Co., for the 1st Applicant Ms Juliana Chow (D.L.A.) assigned for the 2nd Applicant |