HKSAR v. CHEN MEI LING AND ANOTHER

HKSAR v. CHEN MEI LING AND ANOTHER

The court held the section 121 affidavit, despite form defects, was admissible and sufficient combined with oral evidence to prove ownership and subsistence of copyright; absence of licences was proved by witness evidence and, where applicable, by the application of s17A or by being the only reasonable inference from secure record-keeping systems; both appellants failed to discharge the statutory defence under s118(3)/(6)/(7) because they did not make reasonable enquiries (and Mainland certificates were unreliable or not genuine); appeals against conviction were dismissed and custodial sentences were reduced to 3 months for D1 and 9 months for D2.

Citation
HKSAR v. CHEN MEI LING AND ANOTHER
Parties
Appellant (d1): Chen Mei Ling; Appellant (d2): Ng Kim; Respondent: HKSAR
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 November 2008
Case Number
HCMA329/2008
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeals against conviction dismissed; sentences varied on rehearing
Legal Topics
Statutory Defence Under S118, Section 121 Affidavit Admissibility, Proof of Absence of Licences (s17 a Evidence Ordinance), Possession for Sale of Infringing Copies, Use of Foreign Mainland Certificates
Source Language
EN
Copyright Law Criminal Law Evidence Law Sentencing Law Statutory Defence Under S118 Section 121 Affidavit Admissibility Proof of Absence of Licences (s17 a Evidence Ordinance) Possession for Sale of Infringing Copies +1 more

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Parties

Chen Mei Ling

Appellant (d1)

Ng Kim

Appellant (d2)

HKSAR

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Validity and admissibility of a section 121 affidavit
  2. 2 Whether prosecution proved absence of licences for questioned tracks
  3. 3 Whether appellants proved statutory defence under section 118(3),(6),(7)

Ratio Decidendi

The court held the section 121 affidavit, despite form defects, was admissible and sufficient combined with oral evidence to prove ownership and subsistence of copyright; absence of licences was proved by witness evidence and, where applicable, by the application of s17A or by being the only reasonable inference from secure record-keeping systems; both appellants failed to discharge the statutory defence under s118(3)/(6)/(7) because they did not make reasonable enquiries (and Mainland certificates were unreliable or not genuine); appeals against conviction were dismissed and custodial sentences were reduced to 3 months for D1 and 9 months for D2.

Court Disposition

Appeals against conviction dismissed; sentences varied on rehearing

Orders

  • D2 (Ng Kim) sentence reduced to 9 months imprisonment