FACC No. 4 of 2003
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 4 OF 2003 (CRIMINAL)
(ON APPEAL FROM CACC NO. 557 OF 2001)
|TSE MUI CHUN
|HONG KONG SPECIAL ADMINISTRATIVE REGION
Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Mortimer NPJ and Lord Scott of Foscote NPJ
Hearing and Decision: 4 December 2003
Handing Down of Reasons: 19 December 2003
J U D G M E N T
Mr Justice Bokhary PJ and Lord Scott of Foscote NPJ:
1. Very many prosecutions have been held in abeyance pending our decision on the two points of law of great and general importance certified for the purposes of this criminal appeal. At the conclusion of the hearing, the Court announced that, for reasons to be handed down in due course, both certified points were decided in favour of the respondent but that the appellant would nevertheless be immediately released. Her immediate release was ordered because it was clear that, by reason of a defect in the affirmation evidence in support of Charge 3, her conviction on that charge could not stand. And, having regard to the time which she had spent in custody before the Appeal Committee granted her bail, the quashing of her conviction on that charge would even of itself lead to her immediate release. Since then it has become clear that the affirmation evidence in support of the other charge on which she was convicted, namely Charge 2 is also defective so that her conviction on that charge, too, must be quashed. In the result, both certified points are decided in favour of the respondent but both of the appellant's convictions are quashed, both of her sentences are set aside, the order for costs made against her at first instance is also set aside and there will be an order nisi (to become absolute 21 days from today) leaving the parties to bear their own costs here and in the courts below. The Court's reasons for arriving at this result are given in this judgment.
Certified points of law
2. The first certified point is one of statutory construction. It has been certified in the form of the following question:
"In an affidavit produced under section 121 of the Copyright Ordinance, Cap. 528, is evidence of copyright ownership admissible from an agent appointed by the copyright owner to attest to that ownership where the fact of ownership is not within the agent's knowledge save from information provided to him by the copyright owner?"
The second certified point is a constitutional one which would arise if the point of statutory construction is decided against the appellant. This constitutional point has been certified in the form of the following question:
"If such evidence is admissible on the true construction of the Ordinance is such section constitutional?"
Save where otherwise indicated, all our references to sections, subsections and paragraphs will be to those of the Copyright Ordinance.
A further point, which emerged in the course of the hearing before this Court, is whether the form of the affirmations relied on by the prosecution pursuant to s.121(1) was compliant with the requirements of that section.
Course which the proceedings took below
3. Shortly stated, the course which the proceedings took in the courts below is as follows. The appellant stood trial before Deputy Judge Livesey in the District Court on a Charge Sheet containing four charges. Charge 2 was alternative to Charges 1 and 4. On 29 November 2001 the appellant was convicted on two charges, namely Charges 2 and 3.
4. Charge 2 was drawn thus:
"Statement of Offence
Making for sale or hire infringing copies of copyright works without the licence of the copyright owner, contrary to section 118(1)(a) and section 119(1) of the Copyright Ordinance, Cap. 528.
Particulars of Offence
TSE Mui-chun, on or about the 12th day of May 2000, at Starry Technology Limited, Unit C-D, 3/F, Mai Wah Industrial Building, 1-7 Wah Shing Street, Kwai Chung, New Territories, in Hong Kong, without the licence of the copyright owner, made for sale or hire (i) 28,003 video compact discs; (ii) 12,515 video compact discs and (iii) 5,532 CD-ROMs being infringing copies of copyright works, namely (i) films; (ii) films and (iii) literary works."
And Charge 3 was drawn thus:
"Statement of Offence
"Possession of an article specially designed or adapted for making copies of a particular copyright work which article is used or intended to be used to make infringing copies of copyright works for sale or hire or for the purpose of trade or business, contrary to section 118(4)(d) section 119(2) of the Copyright Ordinance, Cap. 528.
Particulars of Offence
TSE Mui-chun, on the 12th day of May 2000, at Starry Technology Limited, Unit C-D, 3/F, Mai Wah Industrial Building, 1-7 Wah Shing Street, Kwai Chung, New Territories, in Hong Kong, had in her possession articles, namely 2 stampers, specifically designed or adapted for making copies of a particular copyright work, namely films, which articles are used or intended to be used to make infringing copies of copyright works for sale or hire or for the purpose of trade or business."
5. These are serious offences. That is indicated by the fact that the appellant was sentenced to a total of 28 months' imprisonment (by way of concurrent terms of 24 and 28 months' imprisonment on Charges 2 and 3 respectively). And she was ordered to pay to the prosecution costs in the sum of $4,474 which it had incurred in bringing a prosecution witness from Taiwan to Hong Kong.
6. On 7 November 2002 the Court of Appeal (presided over by Stuart-Moore VP sitting with Stock JA and Gall J) affirmed the appellant's convictions. She then came to this Court to challenge her convictions on the basis of the first certified point or, failing it, the second one. There is not - and has never been - any discrete complaint by her as to sentence or costs. Everything depends on conviction.
Background to the issue of admissibility
7. Turning now to the background to the issue of admissibility underlying the first certified point, this issue arose in the following way. The appellant was a licensed optical disc manufacturer. She was the company secretary and a director of and a shareholder in the company mentioned in both of the charges on which she was convicted, namely Starry Technology Ltd. This company manufactured optical discs at its factory premises mentioned in those two charges ("the Premises").
8. On the day mentioned in those two charges, namely 12 May 2000, a quantity of cartons containing optical discs were delivered from the Premises to the public cargo loading area in Yaumati where, on the same day, those cartons were seized by customs officers. Found inside those cartons were 155,000 optical discs. These included the first batch of video compact discs ("VCDs") mentioned in Charge 1, namely the one comprising 28,003 VCDs.
9. Later that day customs officers raided the Premises where they seized another batch of VCDs and a batch of CD-ROMs. The VCDs seized at the Premises during this raid comprise the second batch of VCDs mentioned in Charge 2, namely the one comprising 12,515 VCDs. And the CD-ROMs seized at the Premises during this raid comprise the 5,532 CD-ROMs mentioned in Charge 2. Also seized in the course of this raid were four stampers including the two stampers mentioned in Charge 3.
10. The VCDs mentioned in Charge 2 were of seven cartoon films: Aladdin and the King of Thieves; Beauty and The Beast; Mulan; One Hundred and One Dalmatians; The Lion King; The Lion King II, Simba's Pride and The Little Mermaid. We will refer to these films as "the Seven Films". The CD-ROMs mentioned in Charge 2 contained a sound recording of the song My Heart Will Go On sung by Ms Celine Dion. We will refer to this sound recording as "the Song". As for the two stampers mentioned in Charge 3, they were for sides A and B respectively of the disc for one of the Seven Films, namely Aladdin and the King of Thieves.
11. The issue which has led to the appeal to this Court is as to the nature of the evidence to be adduced in order to prove the existence of subsisting copyright in the works in question and in order to prove that the allegedly infringing copies were made without the consent of the copyright owners.
Section 118 provides, so far as relevant for present purposes, as follows:
"(1) A person commits an offence if he, without the licence of the copyright owner -
(a) makes for sale or hire ...
an infringing copy of a copyright work.
(3) It is a defence for the person charged with an offence under subsection (1), to prove that he did not know and had no reason to believe that the copy in question was an infringing copy of the copyright work.
(4) A person commits an offence if he -
(d) possesses ...
an article specifically designed or adapted for making copies of a particular copyright work which article is used or intended to be used to make infringing copies of the copyright work for sale or hire ...
(5) It is a defence for the person charged with an offence under subsection (4) to prove that he did not know and had no reason to believe that the article was used or was intended to be used to make the infringing copies for sale or hire ..."
12. In order to establish that a s.118(1)(a) offence has been committed, the prosecution needs to prove:
(1) that there was subsisting copyright in the work in question;
(2) that the defendant had made a copy of the work in question;
(3) that the defendant had done so in order to sell or hire the copy he had made; and
(4) that the defendant...