HCMA 431/1999







HKSAR Respondent
TAN SAY SENG Applicant


Coram: Hon Stuart-Moore VP, Wong & Stock JJA

Date of Hearing: 9 January 2001

Date of Judgement: 9 January 2001




Stuart-Moore VP (giving the judgment of the Court):

1. This is an application which has been brought under the provisions of section 32(2) of the Court of Final Appeal Ordinance, Cap.484, for a certificate that a point of law of great and general importance is involved in the decision of this court (differentlyconstituted) on 15 June 2000, the reasons for which were handed down on 30 June 2000.

2. Mr Grossman, SC, on behalf of the Applicant, has posed the following questions on which he has invited the court to grant a certificate:

“(I) Whether or not, in respect of the statutory defence under section 118(3) of the Copyright Ordinance, Cap. 528:

(a) an objective test is to be applied to the words ‘had no reason to believe’ (the second limb of the statutory defence); and

(b) enquiries in Hong Kong have to be made; and if not, under what circumstances need they not be made.

(II) Whether or not a tribunal, having accepted the evidence upon an issue, may dismiss that evidence and substitute its own viewon the issue contrary to that accepted evidence.”

3. The history to this case is already somewhat lengthy. The charge related to an offence which was committed on 13 January 1998. On7 July 2000, seven days after the reasons for the Court of Appeal’s judgment were handed down, the Applicant’s solicitors filed aNotice of Motion as a preliminary step towards seeking a certificate to take the matter to the Court of Final Appeal. The matterwas set down for hearing on 16 August 2000. However, on 14 August 2000, the Applicant’s solicitors served on the court a ConsentSummons to withdraw the motion and the hearing did not take place. On 15 August 2000, the Applicant’s solicitors wrote a letter tothe court accompanied by an explanatory letter from the Applicant asking for the restoration of the original Notice of Motion. Uponreceipt of this letter, the court gave directions that the Applicant’s solicitors should make a formal application to restore theNotice of Motion, supported by an affirmation setting out the grounds to be relied upon. Three months then went by before the Applicant’saffirmation was received by the court on 16 November 2000 setting out the grounds for requesting a restoration of the Notice of Motion.Put shortly, the Applicant’s reason for the withdrawal of the original motion was that he had not at that stage received the financialbacking of his employer’s parent company in Singapore, which had previously “supported” his legal fees. Apparently, confirmationthat the company would support his appeal to the Court of Final Appeal only arrived by fax on 15 August 2000.

4. A letter dated 16 November 2000 from the Applicant’s solicitors sought to explain the long delay in serving the Applicant’s affirmation.This stated that the Applicant was “now working in Australia and has retained a new Senior Counsel”.

5. We are less than impressed by this explanation. It is an application which is greatly out of time and in the circumstances, on thisbasis alone, we would not have been minded to entertain it. However, lest it appear that we are taking a technical point againstthe Applicant, we should say that the merits of the application have not only been considered by the court as presently constitutedbut were, as the Reasons for Judgement plainly demonstrate, also considered by the court which heard the appeal from the decisionof the magistrate. In the judgment, at page 2, we stated:

“The appeal was referred to this court because the judge below having heard the appeal in part, considered that a point of law arosewhich the Court of Appeal should rule on and that, as a matter of convenience, the whole appeal should be dealt with by this court.After considering the case transcript, the arguments advanced at the appeal and having heard counsels’ submissions at this hearingwe are of the view that no important point of law arises in this case. We deprecate the waste of listing time and the additionalcosts this hearing has occasioned the Appellant and the Respondent. We acknowledged that the fault did not lie with the parties andto avoid further wasted time and costs we heard the appeal.”

6. We have not been persuaded by Mr Grossman that this view of the matter was in error. Point (I)(a) raised by Mr Grossman may wellbe an important one, but in our view it does not require determination by the Court of Final Appeal. The point is already well settledin this jurisdiction and elsewhere. Mr Grossman was unable to cite a single case in which a subjective test was taken to be the appropriatetest to be applied to the phrase in question.

7. There is, in our view, nothing of any importance in the other points which have been raised. Accordingly, we decline to certify.

8. We make an order that the taxed costs of this application are paid by the Applicant.

(M. Stuart-Moore) (Michael Wong) (Frank Stock)
Vice-President Justice of Appeal Justice of Appeal


Mr John Reading ,SC, of the Department of Justice, for the Respondent.

Mr Clive Grossman, SC, and Mr Herbert Au Yeung, instructed by Messrs Ho, Lo & Yeung, for the Applicant.