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Hksar v Kong Wai Chun And Others

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date20 May 2011
Subject MatterCriminal Appeal
Judgement NumberCACC252/2009
CourtCourt of Appeal (Hong Kong)
CACC252/2009 HKSAR v. KONG WAI CHUN AND OTHERS

CACC 252/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 252 OF 2009

(ON APPEAL FROM DCCC NO. 760 of 2007)

____________

BETWEEN

HKSAR Respondent
and
KONG Wai Chun 1st Applicant
TANG Wai Man 2nd Applicant
WONG Hoi Kiu 3rd Applicant
FUNG Kin Ping 4th Applicant
MAK Yiu Choung 5th Applicant
WONG Chun Kit 6th Applicant

____________

Before: Hon Stock VP, McMahon and Wright JJ in Court

Date of Hearing: 15, 16 and 17 February 2011

Date of Judgment: 20 May 2011

_______________

JUDGMENT

_______________

Hon Wright J (giving the judgment of the Court):

1. These applications for leave to appeal conviction and sentence all arose from a trial which lasted 117 days before Deputy Judge Merinda Chow in the District Court. We refer to the applicants as they were referred to at trial.

The charges

2. 10 accused were tried, all of whom, save for the 7th accused, faced a charge (Charge 1) of conspiring with one another and other persons unknown between 16 February 2006 and 14 February 2007 to sell, without the licences of the copyright owners, infringing copies of copyright works, contrary to s. 118(1)(e)(ii) and 119(1) of the Copyright Ordinance, Cap. 528 (“the Ordinance”) in three separate premises: first , in Kwun Tong Plaza, Shop 138; second , also in Kwun Tong Plaza, Shops 134 and 139, those two latter premises having been physically consolidated, to which we shall refer simply as “Shop 139”; and, third , Shop 441B at 441 Kwun Tong Road. Each was convicted. The 1st to 6th accused each sought leave to appeal both conviction and sentence, the remaining accused either having abandoned their applications or not sought leave.

3. The 1st accused also faced a charge (Charge 7) of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to s. 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455 (“OSCO”). That offence was said to have occurred between 3 June 2002 and 14 February 2007 and related to an amount of $7,193,960.00. The 2nd accused faced a similar charge (Charge 8) covering the same period which was alleged to have involved an amount of $23,297,693.57. Each was convicted and sought leave to appeal both conviction and sentence.

4. The 3rd and 4th accused together with the 7th accused faced a further single charge of exposing for sale, contrary to s. 118(1)(e)(ii) and 119(1) of the Ordinance, infringing copies of copyright works in Shop 441B. The 5th and 6th accused faced two similar charges (Charges 2 and 3) in respect of Shops 138 and 139 respectively alleged to have been committed on 14 February 2007. All were convicted and all, except the 7th accused, sought leave to appeal both conviction and sentence: the 3rd and 4th accused subsequently abandoned their applications.

5. The 8th and 9th accused each also faced separate charges (Charges 6 and 5 respectively) of possession of infringing copies of copyright works, also on 14 February 2007, with a view to committing an act infringing the copyright of the copyright owners of them, contrary to s. 118(1)(d) and 119(1) of the Ordinance), the 8th accused in premises situated at Room 916, Rainbow Industrial Building, 149 Wai Yip Street and the 9th accused in premises situated at Room B, 6/F, 66 Yu Man Square.

6. There was no application by either of these accused but we make reference to this not only for the sake of completeness but also because these two premises were found by the judge to be storerooms maintained for the purposes of supplying infringing discs to the three shops. It was also the prosecution's case, and so found by the judge, that a motor van, bearing registration GH 5473, parked in a parking bay rented on the 7th floor of Kwun Tong Plaza provided a further storage facility.

7. The 1st accused elected not to testify but called three witnesses, essentially in regard to Charge 7. The 2nd accused testified and called four witnesses, essentially in regard to Charge 8. None of the other accused testified.

8. The 1st accused was unrepresented on appeal in respect of conviction but was represented as to sentence. We indicated to the 1st accused that we would take into account on his behalf the submissions of other accused insofar as they might benefit the outcome of his appeal against conviction.

The background

9. Although it will be necessary to revisit certain aspects of the evidence, a broad summary suffices at this stage. There has been no serious suggestion, either at trial or before us, that this is not what occurred.

10. Prior to April 2006 there had been seizures of suspected infringing optical discs from the shops, albeit that none had been submitted to the copyright owners for examination. The Customs and Excise Department (“C&E”) then launched an operation, named “Touchdown”, which was to involve covert surveillance being maintained on the three shops and the persons suspected to be involved in the commission of offences. Those persons, the various premises and other places or areas were allocated a series of codenames for the purposes of the operation. Operation Touchdown commenced on 24 April 2006 and turned overt on 14 February 2007 when all of the accused, except the 10th, were arrested: the 10th accused was arrested in April 2007. Surveillance on Shops 138 and 139 commenced on 24 April 2006 and on Shop 441B on 11September 2006.

11. The surveillance revealed that the system being used in each shop was the same - that the shop was ostensibly unattended: racks were fitted to the walls, upon which racks were displayed various types of optical discs; the discs were allocated code numbers; a member of the public was free to enter the shop to make a selection; notices were displayed directing customers to make payment according to a price list; a box, into which money was to be placed, was located close to the entrance of the shop; men were positioned to watch the shops, to restock them and to collect and deal with the moneys; if a customer needed change, one of the watchers would come forward to assist.

12. A particular place from which watch was kept on Shops 138 and 139 was from outside Shop 102, which was a matter of metres away from, and diagonally opposite to, those two shops. The 2nd accused had become the owner of the premises of Shop 102 in June 2002 along with, in terms of title registration, the wife of the 1st accused. However, for convincing reasons the judge found that it was the 1st accused, and not his wife, who was joint beneficial owner of the premises with the 2nd accused.

13. There had been seizures of discs from Shop 102 between 29 June 2002, when it had been purchased by the 2nd accused, and 1 March 2006 when the whole premises had been rented out to a third party. Between 16 February 2006 and 12 February 2007 periodic raids were carried out on the three shops during which stock was confiscated. On a number of occasions there was more than one raid on the same shop on any one day. None of the seized discs was examined by copyright owners or licensees. Notices were posted up by C&E inviting the owners of the seized goods to claim them: no one ever did. The evidence was that shortly after a raid the racks in the shops were restocked. A number of test purchases were made in the shops. Examination of the discs seized on 14 February 2007 revealed approximately 34% of the discs to be infringing copies.

THE APPEALS AGAINST CONVICTION

14. In respect of the conspiracy charge and charges relating to the exposure of infringing discs for sale, the fundamental issue before the judge, and the prime ground of appeal advanced before us by all except the 1st accused who largely accepted the accuracy of the identifications made of him and the 2nd accused, against whom there was no such evidence, was that of identification of the various accused with particular emphasis on the propriety of the courtroom identifications permitted by the judge. A second common ground of appeal related to the sufficiency of the evidence against each accused in the event that the identifications were upheld. The 2nd accused further submitted that the proceedings were time-barred.

15. We propose to deal, first , with the identification issue; then with the submission that the prosecution is time barred; lastly, with the remaining grounds of appeal of each applicant. In this latter connection there is a complaint common to the applicants that there was insufficient evidence to sustain the individual convictions: this will be addressed insofar as may be necessary when dealing with the individual applicants’ application.

16. We shall then deal with the money laundering charges against the 1st and 2nd accused.

1. THE CHARGES OF CONSPIRACY AND EXPOSING INFRINGING COPIES FOR SALE

1.1 The identification issue

17. It is clear from her Reasons for Verdict that the judge was fully alive, throughout the trial, to the importance of the issue of identification. In introductory passages to her Reasons for Verdict, under a heading "Assessment of Evidence" she said:

46. The issues at trial of the surveillance witnesses are mainly credibility and identifications.

i. The defence said that there was no ID parade held after arrest of the defendants, this is a case of dock identification and to allow the witnesses to identify the defendants in court was unsatisfactory, undesirable and more importantly the prejudicial effects outweigh the probative value.

ii. The Prosecution said it was a case of recognition as the Customs officers had put these defendants under observations for a period of time. Therefore, no ID parade...

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