Hksar v Best Success Holding Ltd

Judgment Date20 January 2005
CourtDistrict Court (Hong Kong)
Judgement NumberDCCC340/2003
Subject MatterCriminal Case

DCCC1052/2002, 47/2003 & 340/2003



CRIMINAL CASE NOS. 1052 OF 2002, 47 & 340 OF 2003


  Best Success Holding Limited 1st Defendant


Coram : Her Honour Judge Yuen in Court

Date of Hearing : 30th October 2004

Date of Ruling : 30th October 2004

Date of Handing Down Reasons for Ruling : 20th January 2005

Reasons for Ruling on Application for Confiscation Order

1. This is a forfeiture application lodged by the prosecutions under section 132 of the Copyright Ordinance Cap 528 for the forfeiture of 6 production lines belonging to the 1st Defendant after the 1st Defendant had been convicted of 8 copyright offences under section 118 of Cap 528 in respect of the production of 30,757 infringing copies of video compact discs, involving 5 films: “ Digimon Adventure”, “Doraemon”, “101 Dalmatians”, “Lady and the Tramp” and “Blue Cat 3000 Questions”.

2. After convicting the 1st Defendant I have imposed a total fine of HK$1.981 millions for the 8 charges of which the 1st Defendant was found guilty of.

3. There is no dispute between prosecutions and the defence about the legal principles to be applied in forfeiture proceedings:-

(a) S.132 of Cap 528 confers a discretion upon the court to decide whether to order forfeiture of articles used in the making of infringing copies of work. The options available are :-
(i) to grant an order for forfeiture,
(ii) to deliver the articles to the person who appears to the court be the owner of the copyright owner, or
(iii) to dispose in such other way as the court may think fit.
(b) The judicial discretion must be exercised fairly, not arbitrarily nor lackadaisically. (R v Wong Shiu-lun [1992] 2 HKC 555, 557)
(c) In AG v So Lo-kam [1986] HKLR 564, per de Basto J,
(i) The purpose for which the forfeiture provisions were enacted was to enforce the Ordinance and to serve as a deterrent against its contravention, that is, that forfeiture provisions are penal and deterrent in nature.
(ii) The court must not make an order, the result of which would be to frustrate the object of the legislation or to impair its effectiveness.
(iii) Once the prescribed conditions are established, the Crown is not obliged to prove an additional fact of guilt or negligence.
(iv) Once the prescribed conditions are fulfilled, an order for forfeiture should be made unless some good reason is shown by the claimant, on the balance of probabilities, as to why a forfeiture order should not be made.
(v) Good faith, or innocence based on ignorance, does not entitle the claimant to have the article, vessel or vehicle restored to him.
(vi) The sentence passed on a claimant in the prior criminal proceedings is irrelevant.
(vii) Considerable financial loss, even for a claimant not of substantial wealth, is a hardship but not an undue hardship.
(viii) The mere fact that forfeiture would cause undue hardship on a claimant does not, of itself, mean that a forfeiture order should be refused.
(d) In R v Buddo (1982) 4 Cr App R(S) 268 at page 270 it was suggested that an order of forfeiture adds greatly to the severity of the sentence imposed upon the accused.
It was suggested that the value of the property to be forfeited and the likely financial and other effects on the accused of making a forfeiture order are material matters which the court should take account of before ordering forfeiture (see R v Highbury Corner Stipendiary Magistrate ex p Di Matteo (1990) 12 Cr App R(S) 594, at 598.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT