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Hksar v Li Cheung

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date11 January 2005
Year2005
Judgement NumberCACC375/2004
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000375/2004 HKSAR v. LI CHEUNG

CACC 375/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 375 OF 2004

(ON APPEAL FROM DCCC NO. 1101 OF 2002)

______________________

BETWEEN

　 HKSAR Respondent
　 and 　
　 LI CHEUNG 李祥 Applicant

______________________

Before : Hon Woo VP, Cheung JA and Lugar-Mawson J in Court

Date of Hearing : 5 January 2005

Date of Judgment : 11 January 2005



__________________

J U D G M E N T

__________________

Hon Woo VP (giving the judgment of the Court):

Introduction

1. On 3 August 2004, the applicant was convicted after trial before Deputy Judge Dufton in the District Court of three copyright infringement offences. The applicant was the first defendant (“the applicant or D1”) whereas Shine Gold Limited was the second defendant (“D2”) on trial before the judge.

2. Both defendants faced the following four charges:

(1) Charge 1 – possession for the purpose of, or in the course of, any trade or business infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, contrary to s 118(1)(d), s 119(1) and s 125 of the Copyright Ordinance, Cap. 528 (“the Ordinance”).

(2) Charge 2, as an alternative to Charge 1 – making for sale or hire infringing copies of a copyright work without the licence of the copyright owner, contrary to s 118(1)(a), s 119(1) and s 125 of the Ordinance.

(3) Charge 3 – possession of articles specifically designed or adapted for making copies of particular copyright works which articles were used or intended to be used to make infringing copies of the copyright work for sale or hire or for use for the purpose of, or in the course of, any trade or business, contrary to s 118(4)(d), s 119(2) and s 125 of the Ordinance.

(4) Charge 4 – possession of articles knowing or having reason to believe that they were used or intended to be used to make infringing copies of copyright works for sale or hire or for use for the purpose of, or in the course of, any trade or business, contrary to s 118(8), s 119(2) and s 125 of the Ordinance.

The prosecution’s case

3. The prosecution’s case was that on 15 October 2001, officers of Customs & Excise carried out an inspection at the factory premises of D2, which was also its registered office. D2 was a licensed manufacturer of video compact discs (“VCDs”). The applicant was the registered licensee and one of the two directors of D2, the other director being the applicant’s wife. The applicant held 70% and his wife 30% of the shares in D2. At the time of the inspection, the applicant was not present at the premises.

4. The following articles were found and seized from the said premises:

(a) 78,226 infringing VCDs of a cartoon film known as “Crayon Shinchan” (“the said film”), the subject of Charge 1 and in the alternative Charge 2;

(b) 19 stampers being master copies designed or adapted for the purpose of making copies of the said film, the subject of Charge 3; and

(c) 3 production lines out of 4 that were operating at the time, producing the VCDs of the said film, the subject of Charge 4.

5. The applicant and D2 did not testify and did not call any witness at the trial. The judge convicted the applicant and D2 of Charges 1, 3 and 4. He sentenced the applicant to concurrent terms of imprisonment of 12 months, 15 months and 18 months respectively.

6. The applicant now seeks leave to appeal against the three convictions.

Grounds of appeal

7. On behalf of the applicant, counsel Mr Graham Harris and Ms Mahindar Panesar have raised eight substantive grounds of appeal. The first three grounds relate to the propriety of each of the charges. The other five grounds relate to the weight of the evidence of the possession of the items, the subjects of the charges, as well as the relevant knowledge on the part of the applicant required for substantiating the charges against him.

The propriety of the charges

8. The first ground of appeal contends that the charges were duplicitous and it was an abuse of process for the applicant to be charged pursuant to both ss 118 and 125 of the Ordinance, “because to succeed under the former charge the applicant had the burden of establishing statutory defences and under the latter he had no such burden.” It is contended that it was inappropriate and improper that the two matters be joined in the same charge.

9. The second ground of appeal contends that the judge erred in holding that the prosecution (the respondent) was not restricted to proceed against the applicant under s 125(1) of the Ordinance.

10. The third ground of appeal contends that the charges were insufficiently particularised in relation to matters relied upon by the prosecution to support such part that might have triggered the application of s 125 of the Ordinance.

11. Counsel argue that the charges that the applicant faced were duplicitous and it was an abuse of process for him to be charged pursuant to both ss 118 and 125 of the Ordinance, for the following reasons:

(a) The two sections have different elements of actus reus and mens rea;

(b) A statutory defence is available to the applicant under s 118 but not under s 125;

(c) Different burdens and standards of proof were applicable for an accused to avail himself of the statutory defences in s 118 while under s 125 the prosecution has the burden of proof beyond reasonable doubt; and

(d) Under s 118, the applicant has a tactical if not legal burden to testify in his defence but under s 125, the applicant is entitled to remain silent.

12. In our judgment, these arguments are flawed. Charges 1 (including Charge 2 in the alternative), 3 and 4 were laid against the applicant and D2. Insofar as the charge was in contravention of s 118, the statutory defences under s 118 were available to each of the defendants. The statutory defences are that the defendant did not know and had no reason to believe that the copy (the 78,226 VCDs in this case) was an infringing copy of the copyright work (s 118(3)), and that he did not know and had no reason to believe that the article (the 19 stampers in this case) was used or was intended to be used to make the infringing copies for sale or hire or for use for the purpose of, or in the course of, or in connection with, any trade or business (s 118(5)). With the exception of Charge 4, which was for contravening s 118(8), s 118 offences are strict liability ones: see HKSAR v Mega Laser Products (HK) Ltd & Ors [1999] 3 HKC 161 and HKSAR v Winners Laser Production Limited & Ors, CACC 620/1999, unreported, at p 5. Charges 1 and 3 are such offences. On the other hand, Charge 4, being an offence under s 118(8), is not a strict liability offence and requires the proof of knowledge that the article (the 3 production lines) were used or intended to be used to make infringing copies.

13. There are different elements to be proved by the prosecution in respect of each of the offences under s 118, which elements the judge had correctly identified in his Reasons for Verdict, as follows:

“11. I will first set out the elements of each of the offences. In order to establish that an offence has been committed contrary to section 118(1)(d) (charge 1) the prosecution must prove:

(a) that there was subsisting copyright in the work in question;

(b) that the accused were in possession of the infringing copies in question, namely 78,226 video compact discs;

(c) that the possession was for the purpose of, or in the course of, any trade or business with a view to committing any act infringing the copyright; and

(d) that the accused had done so without the consent of the copyright owner.”

“13. In order to establish that an offence has been committed contrary to section 118(4)(d) (charge 3) the prosecution must prove:

(a) that the accused were in possession of the articles in question, namely 19 stampers;

(b) that the articles were specifically designed or adapted for making copies of copyright works;

(c) that the accused used, or intended to use the articles for making copies of the copyright work for sale or hire or for use for the purpose of, or in the course of any trade or business;

(d) that there was subsisting copyright in the work in question; and

(e) that the copyright owner had not consented to the making of the copies.

Again see the s of the Court of Final Appeal in TSE Mui-chun v HKSAR at paragraph 12.

14. In order to establish that an offence has been committed contrary to section 118(8) (charge 4) the prosecution must prove:

(a) that the accused were in possession of the articles in question, namely the three production lines;

(b) that the accused knew or had reason to believe that the articles were used, or intended to be used to make copies of copyright works for sale or hire or for use for the purpose of, or in the course of, trade or business;

(c) that there was subsisting copyright in the work in question;

(d) that the copyright owner had not consented to the making of the copies; and

(e) that the accused knew or had reason to believe that such copies were infringing copies.

See the decision of the Court of Appeal in HKSAR v Ho Hon-chun Danel & Others CACC 350/2002.”

14. Section 125 of the Ordinance provides as follows:

“(1) Where a body corporate commits an offence under this Ordinance in respect of any act which is shown to have been committed with the consent or connivance or, or to be attributable to any act on the part of, any director, manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity he, as well as the body corporate, commits the offence.”

15. Regarding the reference to s 125 of the Ordinance...

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