30 June 2006Our Ref: WKC15Ms Mary ChowDeputy Secretary for Commerce, Industry & TechnologyLevel 29, One Pacific Place88 QueenswayHong KongFax: 2840 1621Dear MaryCopyright (Amendment) Bill 2006: Supplementary Comments by the Chamber withrespect to provisions on Director's/Partner's Criminal LiabilityI would like to follow up with you the Chamber's response to the Copyright (Amendment) Bill 2006, which we submitted to the Government earlier last month. We wish to focus specifically on the issue of director's/partner's criminal liability.As stated in our previous paper, the Chamber does not object to the provision provided that it remains the prosecution's duty to prove offence. We have drawn attention to the concern of SMEs that the Bill may amount to having the directors or partners "deemed guilty unless proven innocent" - a concern which must be addressed, despite our understanding that the burden of proof remain with the prosecution.In the course of the Bill's deliberation, we have heard contrasting views among lawyers in interpreting the provision with respect to burden of proof on the part of directors/partners. The Government has since then clarified that the concerned provision does impose a burden of proof on the defendant, though that would be an "evidential burden" rather than a "legal burden".The Chamber's Legal, SME (Small and Medium Enterprises) and DIT (Digital, Information and Telecommunications) Committees have taken another look at the draft legislation and concluded that the Chamber should maintain our position of supporting the introduction of a new criminal offence for directors/partners provided that the proof of guilt lies with the prosecution. We believe that any attempt to impose criminal liability on business operators/managers for what one normally considers as pure mis-management of the business needs to be closely scrutinized.With regard to the Bill, however, it is not certain to us whether the legislative intent that we endorse would be served by the current drafting which, in our view, is capable of different interpretations. Clearly, an "evidential burden" is still a "burden" and to have the burden of proof shifting back and forth does seem unnecessarily complicated.In our view, it would be much simpler and more effective if the Bill is drafted in the conventional way such that, if an infringing item is found at the premises, the director or partner in charge would be liable if he/she authorizes it or otherwise knows about it but has failed to take any reasonable action to eliminate it, and that, in the ordinary course, it would be incumbent upon the prosecution to prove the 'authorization' or 'knowledge/failure to take action'.We invite you to consider re-drafting the related provisions accordingly.Yours sincerelyDr W K ChanSenior DirectorBusiness Policy
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