— 23 —
infringing copies on his computer to appear on the computers of the
downloaders, even if the process did not involve the prior creation by his
computer of an electronic copy (transient or otherwise). I leave open the
question whether such conduct might nevertheless be caught by section
118(1)(f).
Conclusion
59.
For the foregoing reasons, neither of the objections to the
appellant’s conviction succeeds.
He plainly succeeded in distributing
infringing copies of the films in question and was correctly convicted of an
attempt to commit the section 118(1)(f) offence. The appeal must accordingly
be dismissed.
60.
It follows that it is unnecessary to deal with the respondent’s
submission, naturally resisted by the appellant, that if the appeal were allowed,
the Court should substitute convictions on the alternative charges upon which
the magistrate gave no verdict. 19 Those charges were not pursued before
Beeson J and I would, for my part, have been inclined to reject the respondent’s
suggested course. As Mr Pun indicates, it is questionable to what extent the
magistrate made the necessary findings. Additionally, he points to arguable
questions of law, not previously explored, which may well arise in respect of
those charges.
Lord Millett NPJ:
61.
19
I agree with the judgment of Mr Justice Ribeiro PJ.
These were charges of obtaining access to a computer with dishonest intent, contrary to
section 161(1)(c) of the Crimes Ordinance, Cap 200.
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