HKSAR v. YIU CHUN CHU AND ANOTHER

HKSAR v. YIU CHUN CHU AND ANOTHER

The Court upheld the learned Magistrate's credibility findings and conclusion that the exhibited walkie‑talkies were infringing copies; held that the provisions of s35(4) operate as exceptions/negative averments for the purposes of the criminal offence and the burden to prove those exceptions rests on the defence; found the appellants failed to establish the statutory defence under s118(6)/(3); dismissed the appeal against conviction; allowed appeals against sentence in part by substituting fines (1st appellant HK$30,000 in lieu of 9 months imprisonment; 2nd appellant HK$40,000 in lieu of the original HK$64,000 fine).

Citation
HKSAR v. YIU CHUN CHU AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: YIU CHUN CHU; 2nd Appellant: EASTEL 33 ENTERPRISES LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 September 2008
Case Number
HCMA1192/2007
Procedural Posture
Magistracy Appeal (criminal) to Court of First Instance / Decision on Appeal (judgment)
Outcome
Appeal against conviction dismissed; appeals against sentence allowed in part.
Legal Topics
Infringing Copy, Statutory Defences (s118), Burden of Proof, Parallel Import, Appeal Against Conviction, Appeal Against Sentence, Sentencing Mitigation
Source Language
EN
Intellectual Property Copyright Law Criminal Law Procedural Law Infringing Copy Statutory Defences (s118) Burden of Proof Parallel Import +3 more

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Parties

HKSAR

Respondent

YIU CHUN CHU

1st Appellant

EASTEL 33 ENTERPRISES LIMITED

2nd Appellant

Procedural Posture

Magistracy Appeal (criminal) to Court of First Instance / Decision on Appeal (judgment)

Legal Issues

  1. 1 Whether the 8 exhibited walkie‑talkies were infringing copies of a registered design/copyright
  2. 2 Whether section 35(3) or section 35(4) of the Copyright Ordinance applied and which party bore the burden of proof for exceptions in s35(4)
  3. 3 Whether the statutory defence in s118(3)/(6) was established by the appellants

Ratio Decidendi

The Court upheld the learned Magistrate's credibility findings and conclusion that the exhibited walkie‑talkies were infringing copies; held that the provisions of s35(4) operate as exceptions/negative averments for the purposes of the criminal offence and the burden to prove those exceptions rests on the defence; found the appellants failed to establish the statutory defence under s118(6)/(3); dismissed the appeal against conviction; allowed appeals against sentence in part by substituting fines (1st appellant HK$30,000 in lieu of 9 months imprisonment; 2nd appellant HK$40,000 in lieu of the original HK$64,000 fine).

Court Disposition

Appeal against conviction dismissed; appeals against sentence allowed in part.

Orders

  • Convictions of both appellants upheld
  • Set aside sentence of 9 months imprisonment imposed on 1st Appellant and substitute a fine of HK$30,000 payable within one week of judgment