CACV211/2023

CACV211/2023

A CACV 211/2023, [2026] HKCA 11 A On Appeal From [2023] HKCFI 1516 B B IN THE HIGH COURT OF THE C HONG KONG SPECIAL ADMINISTRATIVE REGION C COURT OF APPEAL D D CIVIL APPEAL NO 211 OF 2023 E (ON APPEAL FROM INTELLECTUAL PROPERTY PROCEEDINGS E NO 45 OF 2019) F F G G BETWEEN H SKY KING MACHINERY Plaintiff H ENGINEERING LIMITED I I and J J CHINA HARBOUR ENGINEERING Defendant K COMPANY LIMITED K L SHARON ASIA WASTE SORTING Third Party L ENGINEERING LIMITED (discontinued) M M N N Before: Hon Barma and Chow JJA and Mimmie Chan J in Court O O Date of Hearing: 14 October 2025 P Date of Judgment: 2 February 2026 P Q Q JUDGMENT R R S S Hon Chow JA (giving the Judgment of the Court): T T U U V V  - 2 - A A INTRODUCTION B B 1. This is the Defendant’s appeal against the judgment of C C Madam Recorder Sit, SC dated 9 June 2023, after a trial on the issue of D liability, adjudging that the Defendant had infringed the Plaintiff’s D copyright in (i) various construction drawings more particularly described E E below, and (ii) certain installations erected upon Tseung Kwan O F Area 137 based on those drawings. F G G 2. In the Defendant’s Supplementary Notice of Appeal, the H Defendant raises an array of challenges to the Recorder’s findings of fact, H as well as a few discrete points of law or procedure. For reasons which I I we shall endeavour to explain in this Judgment, none of the Defendant’s J grounds of appeal has merit. Accordingly, the Defendant’s appeal is J dismissed. K K L BACKGROUND FACTS L M 3. The basic facts of this case have been fully set out in the M Recorder’s reasoned Judgment dated 9 June 2023 (“the Judgment”), and N N will not be repeated here. For the purpose of the present appeal, the O following brief summary, taken largely from the Judgment, should O suffice. P P Q (a) Public fill banks at Tseung Kwan O Area 137 and Tuen Mun Q Area 38 R R 4. “Public fill” is a type of inert construction materials S consisting of a mixture of rocks, concrete, asphalt, rubbles, bricks, stones S and earth generated from building, excavation, renovation, demolition T T and road works, and is used in, inter alia, reclamation works. Prior to U U V V  - 3 - A A its use, the public fill has to go through a process for the sorting and B B removal of inappropriate materials (such as metals). The sorting and C removal process is carried out at specially designed facilities referred to C in the Judgment as “public fill sorting facilities” (“PFSF”). D D E 5. The operative parts of PFSF include sorting equipment and E conveyor belts formed of steel truss. Trucks carrying construction and F F demolition materials would decant them into PFSF, where the materials G would be transported by covered conveyor belts and pass through G different sorting equipment, which may include vibrating grizzly feeder H H (“VGF”), screen feeder, magnetic separator, and blower. There would I also be workers stationed on picking platforms manually removing I materials which exceed the desired size or are otherwise unsuitable for J J use. The public fill thereby generated would be placed in a temporary K stockpile on the PFSF site, to be transported to the intended land K reclamation site. L L M 6. The Government has set up 2 public fill banks at M Tseung Kwan O Area 137 (“TKO137”) and Tuen Mun Area 38 (“TM38”) N N respectively for the storage of public fill. Contractors would procure the O necessary equipment and set up and operate their own PFSF there. In O the case of TKO137, where the sorting area is substantial in size, at any P P given time there may be more than one contractor on the site operating Q side-by-side in areas designated for different contractors. Q R R (b) The Plaintiff’s sub-sub-contract for the TKO137 PFSF works S S 7. The Plaintiff is a limited company carrying on the business T of construction and engineering contracting. T U U V V  - 4 - A A 8. In the early 2000s, the Government was engaged in the B B carrying out of a reclamation project at Penny’s Bay known as C “Penny’s Bay Reclamation Stage 2” (“PB Project”), under which some C 60 hectares of land were to be reclaimed for the expansion of Hong Kong D D Disneyland, and invited tenders from contractors for the project. Under E Particular Specifications Appendix 6.2 (“PS Appendix 6.2”), the E contractor’s responsibility included the design, construction, installation, F F operation, maintenance and eventual removal of the PFSF constructed G upon designated areas in TKO137 and TM38 for the PB Project G (“TKO137 PFSF” and “TM38 PFSF” respectively). The contractor’s H H design of the PFSF was required to be checked and certified by an I independent engineer at the contractor’s cost (PS Appendix 6.2 I clause 6.2.4; Special Conditions of Contract clause 18). J J K 9. Gammon Skanska Limited (“Gammon”) submitted a bid for K the PB Project in December 2002. The tender documents included 7 L L drawings for PFSF, 3 of which specifically concerned TKO137, 3 M specifically concerned TM38, and one was for “typical details” of PFSF M showing a cross section of the access ramp, picking platform, conveyor N N support structure and cover, and conveyor truss (“Gammon Tender O Plans”). Gammon’s bid was successful. It was appointed main O P contractor of the PB Project on 17 April 2003 (“the Main Contract”). P Q 10. Win Hing Civil Engineering Limited (“Win Hing”) was Q interested in bidding for a sub-contract for the TKO137 PFSF portion of R R the PB Project from Gammon, and liaised with the Plaintiff to look for a S S suitable person with the necessary expertise to assist in the construction T T U U V V  - 5 - A A and engineering of TKO137 PFSF. For this purpose, the Plaintiff found B B and engaged a person called Wong Tung Ping (“TP Wong”). C C 11. Transportation of public fill from the TKO137 PFSF, D D running along the coast with sloping seawalls, to land reclamation sites E was by sea, through barges. Given TKO137’s topography, (i) further E conveyor belts were required to be constructed from the bottom of the F F stockpile extending all the way out to the sea where the barges were G berthed, which involved constructing a “barging conveyor” belt (ie part G of the conveyor belt was “hanging” as it needed to extend out to and over H H the sea for about 30 meters to deposit the sorted public fill directly on to I the barges), and (ii) temporary berths were required to be constructed, I extending out from the sloping seawalls, for the berthing of barges. J J K 12. The Plaintiff (through TP Wong) put together a method K statement for the TKO137 PFSF, including some hand-drawn plans L L showing the schematic and layout of the PFSF, which revealed a design M with 2 sorting lines, with one line running in a “loop”. On 23 June 2003, M the Plaintiff submitted a quotation to Win Hing for the installation of a N N PFSF plant as specified in the said method statement, and the operation of O the PFSF plant, at TKO137. In the quotation, the following was O expressly stated: P P “*For the avoidance of doubt, the sub-contractor should Q carry out the sub-contract works in accordance with Q specifications and requirements of the Main Contract, R including but no limited to – 1. P.S. clause 6.07 & 6.74 2. R P.S. Appendix 6.2 3. SCC18”. [sic] S S 13. By a letter dated 27 June 2003, Gammon accepted T Win Hing’s bid for the sub-contract works in respect of the TKO137 T U U V V  - 6 - A A PFSF portion of the PB Project (“the Sub-contract”). The letter stated B B that the conditions of sub-contract were to be in substantially the same C form as Gammon’s standard form of sub-contract but subject to C amendments as were necessary to reflect the requirements in respect of D D the PFSF works in Gammon’s main contract, and that until a formal E sub-contract was executed, the letter would constitute a binding contract E between Gammon and Win Hing. As a matter of fact, no formal F F sub-contract was ever executed between Gammon and Win Hing. G G 14. On 28 June 2003, Win Hing issued a letter to the Plaintiff H H confirming acceptance of the Plaintiff’s quotation for the TKO137 PFSF I works (“the Sub-sub-contract”). The letter contained statements I identical to that in the Gammon letter of acceptance on the execution of a J J sub-contract. As in the case of the sub-contract between Gammon and K Win Hing, no formal sub-sub-contract was in fact executed between K Win Hing and the Plaintiff. L L M (c) The Hand Drawn Plans, KT Plans and SF 2003 Plans M N 15. Around this time, TP Wong reflected on and improved the N layout of the TKO137 PFSF, and (according to the Plaintiff) produced 7 O O hand-drawn plans (collectively “Hand Drawn Plans”) for the TKO137 P PFSF between May/June and August 2003. The Hand Drawn Plans P included: Q Q (1) a layout plan (“Hand Drawn Plan A”); R R (2) a conveyor elevation drawing showing the 2 sorting lines up S to the stockpile (“Hand Drawn Plan B”); S T T U U V V  - 7 - A A (3) a berthing fender elevation drawing (“Hand Drawn Plan B B C”); and C (4) 4 drawings showing the barging conveyor and some of its C details (“Hand Drawn Plans D, E, F, A144” respectively). D D E E 16. The Plaintiff also engaged Kin Tat Engineering Survey F Company (“Kin Tat”) to prepare a set of 13 digitized (ie computer) F drawings for the TKO137 PFSF (“KT Plans”). The KT Plans were G G prepared based on the Hand Drawn Plans as well as instructions given by H TP Wong. They were created between 30 June and 7 July 2003, and H were provided by Win Hing to Gammon on 8 July 2003. Kin Tat I I acknowledged that copyright in the KT Plans belonged to the Plaintiff. J J 17. Since late July 2003, a series of digitized construction K K drawings for the TKO137 PFSF were created by Lambeth Associates L Limited (“Lambeth”), an entity within the Gammon group, which bore L the prefix “SF” and were used for the assembling of the TKO137 PFSF M M (“the SF 2003 Plans”). At the top right-hand corner of all the SF 2003 N Plans is a box containing the following statement: N O “This document and the copyright in it is the property of O [Gammon]. [Gammon] shall forthwith take all appropriate action against any infringer of its copyright” (“Gammon P Copyright Statement”). P Q Q 18. From around August 2003, the TKO137 PFSF (with 2 R sorting lines) were constructed (“P’s Installation”) based on the SF 2003 R Plans, and commenced operation afterwards. S S T T U U V V  - 8 - A A (d) The SF 2005 Plans B B 19. In 2005, a third sorting line for the TKO137 PFSF was C C constructed, and operated by Gammon immediately next to the 2 existing D sorting lines operated by the Plaintiff. Gammon constructed this third D sorting line with the assistance of a person called Wong Chi Wai (also E E known as “Dee”, hereinafter referred to as “Dee Wong”), who was at that F time employed as a general foreman of Ho Hon Construction and F Engineering Limited, the sub-contractor for the TM38 PFSF portion of G G the PB Project. The Plaintiff was not involved in the construction or H operation of the third sorting line. H I I 20. For the third sorting line, a further set of construction J drawings (“SF 2005 Plans”) was created by Lambeth. Not all the J components of the third sorting line had their own SF 2005 Plans. The K K third sorting line was built based on the SF 2003 Plans and SF 2005 Plans. L The Plaintiff’s case, which the Recorder accepted, is that the SF 2005 L Plans were created by copying the SF 2003 Plans and the as-built P’s M M Installation. N N 21. The works for the TKO137 PFSF portion of the PB Project O O were completed in 2006. The two sorting lines operated by the Plaintiff P were dismantled in 2007. P Q Q (e) The MS Plans R R 22. In 2012, the Defendant was appointed main contractor for a S Government project for the reclamation of land and construction of an S artificial island for the “Hong Kong-Zhuhai-Macau Bridge and T T Hong Kong Boundary Crossing Facilities” (“HZMB Project”). U U V V  - 9 - A A 23. The Defendant engaged Sharon Asia Waste Sorting B B Engineering Limited (“Sharon”) as sub-contractor for the PFSF portion C of the works at TKO137 for the HZMB Project. Sharon employed C Dee Wong as the team leader for those works and, with the assistance of D D Dee Wong, prepared the construction drawings (“MS Plans”) for the E PFSF at TKO137, which had 4 sorting lines, and installed the PFSF at E TKO137 for the HZMB Project accordingly. F F G 24. Dee Wong accepted that he used the design of TM38 PFSF G and the SF 2005 Plans in the HZMB Project, but claimed that the design H H he used in the HZMB Project was substantially different from that in the I SF 2003 Plans. I J J (f) The Plaintiff’s claim against the Defendant K K 25. It is the Plaintiff’s case that: L (1) the SF 2003 Plans and P’s Installation were (and are) L original artistic works within the meaning of s 5 of the M M Copyright Ordinance, Cap 528 (“the Ordinance”); N N (2) the Plaintiff was (and is) the sole owner of the copyright O subsisting in the SP 2003 Plans and P’s Installation; O P (3) the SF 2005 Plans were created by copying the SF 2003 P Plans and the as-built P’s Installation, and any and all Q Q copyright subsisting in the SF 2005 Plans remained solely R owned by the Plaintiff due to its ownership of the copyright R in the SF 2003 Plans and P’s Installation from which the S S SF 2005 Plans were derived; and T T U U V V  - 10 - A A (4) the Defendant infringed the Plaintiff’s copyright in the B B SF 2003 Plans, SF 2005 Plans and P’s Installation by (i) C copying/jointly copying, authorizing, directing, counseling, C and/or procuring the copying of the SF 2003 Plans, SF 2005 D D Plans and P’s Installation and/or substantial parts thereof in E the MS Plans, and/or (ii) causing/jointly causing, authorizing, E directing, counseling, and/or procuring the PFSF for the F F HZMB Project to be erected and installed at TKO137 G according to the MS Plans in the course of carrying out the G works under the HZMB Project. H H I In what follows, unless the context indicates otherwise, references to I “Section” or “s” shall be to the numbered sections of the Ordinance. J J K 26. On 26 May 2014, the Plaintiff commenced an action in the K High Court (originally under HCA 924/2014 which later became L L HCIP 45/2019) against the Defendant claiming, inter alia, damages and M injunctive relief against the Defendant for infringement of its copyright in M N the SF 2003 Plans and P’s Installation. The Plaintiff originally advanced N its claims with respect to 32 of the SF 2003 Plans, grouped into O O 9 categories. However, by the end of the trial, the number of SF 2003 P Plans that the Plaintiff relied on was reduced to 25 under 6 categories, P namely: Q Q (1) Layout – SF 101 to 105; R R (2) VGF structure – SF 106 to 107 and 110 to 113; S (3) Vibrating screen structure – SF 120 to 121; S T (4) Barging conveyor – SF 167 to 172; T U U V V  - 11 - A A (5) Berthing fender – SF 146 to 148; and B B (6) Conveyor support structure – SF 161, 163 and 165. C C D 27. The Defendant in turn commenced third party proceedings D against Sharon in July 2014. Sharon actively defended the third party E E proceedings until 28 June 2022, when its solicitors ceased to act and F Sharon indicated that it would not attend the trial. The third party F proceedings were eventually discontinued by the Defendant on G G 20 December 2022, after the conclusion of the trial on the issue of H liability as between the Plaintiff and the Defendant (see below). H I I THE TRIAL J J 28. The Plaintiff’s action against the Defendant on the issue of K liability was tried by the Recorder on divers dates in November 2022. K L L 29. It was common ground that, to establish its claim for M copyright infringement, the Plaintiff bore the burden to prove the M following matters: N N (1) copyright subsisted in the plans and installation relied upon O by the Plaintiff which formed the basis of the action; O P (2) the Plaintiff owned the copyright in those plans and P installation; Q Q (3) the Defendant’s plans constituted infringing copies of the R Plaintiff’s copyright works; and R S (4) the Defendant had committed infringing acts. S T T U U V V  - 12 - A A 30. The Defendant accepted, at the trial, that the MS Plans B B basically followed the SF 2005 Plans, so that if the SF 2005 Plans were a C substantial reproduction of the 2003 Plans, infringement would be C established. Coupled with the fact that the MS Plans had indisputably D D been put forward by the Defendant as its own plans, the Recorder E considered it unnecessary to deal with the issue referred to at §29(4) E above, ie whether the Defendant had committed any infringing acts. F F G 31. On the other hand, an additional issue was raised by G Mr Andrew Liao, SC on behalf of the Defendant, namely, that P’s H H Installation was not “a work of architecture” within the meaning of I “artistic work” in s 5 and hence did not attract copyright protection. I Although this issue was only raised for the first time by Mr Liao in his J J written opening submissions before the Recorder, she allowed the point to K be taken because it raised essentially a question of law and the Plaintiff’s K counsel was prepared and able to deal with it. L L M 32. Accordingly, as stated by the Recorder at §43 of the M Judgment, the following issues fell to be determined: N N (1) did the SF 2003 Plans satisfy the threshold of originality for O O copyright to subsist; P (2) did P’s Installation constitute an artistic work under s 5; P Q (3) did the Plaintiff own the copyright in the SF 2003 Plans and Q P’s Installation; and R R (4) did the SF 2005 Plans copy a substantial part of the SF 2003 S Plans and/or P’s Installation. S T T U U V V  - 13 - A A 33. At the trial, TP Wong gave evidence on behalf of the B B Plaintiff, while Wong Kwok Leung Jacky (“Jacky Wong”, assistant C design manager of Lambeth) and Chan Ho Kin gave evidence on behalf C of the Defendant. In addition, Dee Wong and Yu To Shui Peter (who D D had provided witness statement on behalf of Sharon in the third party E proceedings) were subpoenaed by the Defendant to give evidence. E F F THE JUDGMENT G G 34. On 9 June 2023, the Recorder gave the Judgment in favour H of the Plaintiff against the Defendant. H I I 35. In respect of the witnesses who gave evidence at the trial: J (1) The Recorder considered TP Wong’s testimony to have held J up despite extensive cross-examination, and considered his K K evidence to be credible and genuine. L L (2) The Recorder did not find Jacky Wong to be a satisfactory or M credible witness. The Recorder considered that M Jacky Wong was extremely coy, carefully crafted his N N evidence and answers to focus on his responsibility over the O “structural system” and structural calculations of the PFSF, O when the real and only issue in dispute and the questions put P P to him (which he must have understood) concerned the Q SF 2003 Plans and in particular the visual depictions therein. Q The Recorder further considered his answers in R R cross-examination to be inconsistent in material respects S with his witness statement dated 3 August 2017 (“Jacky’s S Chun Wo WS”) which he made for the purpose of another T T action commenced by the Plaintiff against Chun Wo-CRGL U U V V  - 14 - A A Joint Venture for infringement of copyright in the SF 2003 B B Plans in HCA 1918/2013 (“the Chun Wo Proceedings”), C and rejected his outright denial of having ever received the C KT Plans. The Recorder preferred the evidence of D D TP Wong to the extent that there were conflicts between the E testimony of Jacky Wong and the testimony of TP Wong. E F (3) The Recorder found Dee Wong to be a generally credible F witness, but considered his evidence to be material in only G G 2 aspects, namely – H (a) his role in the creation of the SF 2005 Plans, finding H (contrary to the impression given by his witness I I statements) that he had involvement in only one plan, J namely, the layout of the third sorting line, and was J not responsible for, and admittedly could not and did K K not draw or create, any of the SF 2005 Plans, which he L said were all done by Lambeth; and L M (b) his admission that he had a complete set of the M SF 2005 Plans in his possession, which he used when N N the MS Plans were created for the HZMB Project. O O (4) The Recorder considered Chan Ho Kin to be an honest P witness, and Yu To Shui Peter a less satisfactory one. P However, neither witness’s testimony had any direct bearing Q Q on the issues to be determined by the court. Thus, the R Recorder did not place much weight on their evidence. R S S 36. The Recorder then dealt with the 4 issues mentioned at §32 T above. T U U V V  - 15 - A A 37. In respect of Issue (1), there was no dispute that the SF 2003 B B Plans were “artistic works” under the Ordinance. As to whether the C SF 2003 Plans satisfied the threshold of originality for copyright to C subsist, the Recorder made the following material findings: D D (1) TP Wong created the Hand Drawn Plans between May/June E E 2003 and around August 20031. F (2) The KT Plans2 were provided to Lambeth, and Lambeth had F copied them in generating the SF 2003 Plans3. G G (3) The SF 2003 Plans were created based on TP Wong’s H H designs and depictions, communicated to Lambeth through I the Hand Drawn Plans and KT Plans, meetings between I TP Wong and the Lambeth team in Shenzhen, as well as J J comments and feedbacks from TP Wong on draft plans K produced by Lambeth4. K (4) The SF 2003 Plans were created on the instructions of L L TP Wong, and satisfied the threshold of originality for M M copyright to subsist5. N N 38. In respect of Issue (2), namely, whether P’s Installation O O constituted an artistic work under s 5: P (1) The Recorder found that P’s Installation was constructed as P per the SF 2003 Plans, subject to a few additional or Q Q 1 R See §§72(1) and 77(6) of the Judgment. R 2 Kin Tat prepared the KT Plans based on the Hand Drawn Plans as well as instructions given by TP Wong, and acknowledged that copyright in the KT Plans S belonged to the Plaintiff (see §16 above). S 3 See §82 of the Judgment. 4 T See §86 of the Judgment. T 5 See §90 of the Judgment. U U V V  - 16 - A A different features (which later also appeared in some of the B B SF 2005 Plans and reflected P’s Installation as built)6. C (2) The Recorder held that P’s Installation fell within C sub-paragraph (b) of the definition of “artistic work” in s 5, D D namely, “a work of architecture being a building or a model E for a building”, and was thus capable of attracting copyright E F protection 7 . In coming to this conclusion, the Recorder F took the view that (i) the expression “building” in s 5, G G defined to include “any fixed structure, and a part of a H building or fixed structure”, included a temporary structure H such as P’s Installation , and (ii) the expression “work of 8 I I architecture”, upon its true construction, did not import any J requirement of “artistic quality” 9. J K K 39. In respect of Issue (3), namely, whether the Plaintiff owned L the copyright in the SF 2003 Plans and P’s Installation, the Recorder L found that: M M (1) TP Wong was the person who created the SF 2003 Plans and N N P’s Installation10. O (2) TP Wong created the SF 2003 Plans in the course of his O employment by the Plaintiff, and thus the Plaintiff was the P P owner of the copyright subsisting in the SF 2003 Plans 11. Q Although the Recorder did not expressly refer to P’s Q R 6 R See §§92 to 94 of the Judgment. 7 See §103 of the Judgment. S 8 S See §98 of the Judgment. 9 See §100 of the Judgment. 10 T See §106 of the Judgment. T 11 See §107(1) of the Judgment. U U V V  - 17 - A A Installation in this part of the discussion, the same reasoning B B would clearly lead to the conclusion that the Plaintiff was the C owner of the copyright subsisting in P’s Installation. C (3) As a matter of interpretation of the relevant contracts and D D sub-contracts between (i) the Government and Gammon, (ii) E E Gammon and Win Hing, and (iii) Win Hing and the Plaintiff, F ownership of the copyright in the SF 2003 Plans and P’s F 12 Installation vested in the Plaintiff . G G (4) The Gammon Copyright Notice did not avail the Defendant H because the presumption under s 115(2) and (4) was H rebuttable, and had been rebutted upon the finding that I I 13 TP Wong was the author of the SF 2003 Plans . J J (5) Having reached the above conclusions, the Plaintiff’s K alternative case of joint authorship between the Plaintiff and K Lambeth did not fall to be considered14. L L M 40. In respect of Issue (4), namely, whether the SF 2005 Plans M copied a substantial part of the SF 2003 Plans and/or P’s Installation, the N N Recorder found that: O O (1) There was reproduction of the SF 2003 Plans/P’s Installation P or substantial parts thereof in the SF 2005 Plans. In view P of the Defendant’s acceptance that the MS Plans basically Q Q followed the SF 2005 Plans, there was infringement of the R R S S 12 See §107(6) of the Judgment. 13 T See §108 of the Judgment. T 14 See §109(1) of the Judgment. U U V V  - 18 - A A Plaintiff’s copyright in the SF 2003 Plans and P’s Installation B B by the Defendant15. C (2) Since the PFSF at TKO137 for the HZMB Project was C erected and installed by the Defendant in accordance with D D the MS Plans, the Defendant’s PFSF at TKO137 for the E HZMB Project also infringed the Plaintiff’s copyright in the E F SF 2003 Plans and P’s Installation16. F G G 41. Accordingly, the Recorder entered judgment for the Plaintiff H against the Defendant on the issue of liability, adjudging that the H Defendant had infringed the Plaintiff’s copyright in the construction I I drawings for the TKO137 PFSF for the PB Project and P’s Installation by J (i) the PFSF construction drawings prepared by Sharon whom the J Defendant engaged for the HZMB Project, and (ii) the Defendant’s PFSF K K installation in the HZMB Project to the extent identified at §§111(1) and L 118 of the Judgment. L M M THE APPEAL N N 42. The Defendant’s Supplementary Notice of Appeal dated O 11 September 2023, incorporating its Notice of Appeal dated 7 July 2023, O consists of 31 paragraphs or grounds (namely, 1-2, 2A, 3, 3A-3B, 4-6, P P 6A-6C, 7, 7A, 8-10, 10A, 11-17, 17A-17B, and 18-21). The Q Defendant’s complaints in those grounds can be grouped under 7 issues: Q R (1) Ground 1 - the Recorder’s holding that the Defendant was R required to serve a notice to challenge the authenticity in S S 15 T See §§118-119 of the Judgment. T 16 See §120 of the Judgment. U U V V  - 19 - A A respect of the Hand Drawn Plans, in the absence of which B B the Defendant should not be allowed to argue that the C Hand Drawn Plans were only created after the creation of the C SF 2003 Plans (in the case of Hand Drawn Plan A) and the D D SF 2005 Plans (in all other cases); E (2) Grounds 2 to 3A - the Recorder’s assessment of the E F credibility of TP Wong’s evidence; F (3) Ground 3B - the Recorder’s assessment of the credibility of G G Jacky Wong’s evidence; H H (4) Ground 4 - the Recorder’s failure to draw adverse inferences I against the Plaintiff/TP Wong; I (5) Grounds 5 to 8 - the Recorder’s finding that the Plaintiff was J J the owner of the copyright subsisting in the SF 2003 Plans, K and her failure to consider the case of joint ownership K between the Plaintiff and Gammon/Lambeth; L L (6) Grounds 9 to 10A - the Recorder’s finding that P’s M M Installation was a “work of architecture” and hence an N “artistic work” under s 5(b); and N O (7) Grounds 11 to 21 - the Recorder’s finding that the Defendant O had infringed the Plaintiff’s copyright in the SF 2003 Plans P P and P’s Installation. Q Q 43. These grounds of appeal will be dealt with sequentially R R below. S S T T U U V V  - 20 - A A GROUND 1: WHETHER NOTICE TO CHALLENGE AUTHENTICITY B OF THE HAND DRAWN PLANS WAS REQUIRED B C 44. The Defendant argues that the Recorder (i) erred in law in C holding that there was a requirement for the Defendant to serve a notice D D to dispute the authenticity of the Hand Drawn Plans, where the identity of E the author(s) and the time of making were not stated on the face of those E plans, and (ii) wrongly held that the Defendant should not be allowed, F F after cross-examination of TP Wong that the Hand Drawn Plans were not G made before the KT Plans and/or SF 2003 Plans had been carried out G without objection from the Plaintiff, to “raise such an allegation”. H H I 45. Mr Liao relies on the judgment of Anthony Chan J (as he I then was) in Gotland Enterprises Ltd v Kwok Chi Yau (No 2) [2013] 3 J J HKLRD 490, at §17, for the proposition that the deemed admission under K Order 27, rule 4 of the Rules of the High Court, Cap 4A, in the absence of K a notice of non-admission of authenticity of that document, does not go L L beyond what appears on the face of the documents. Thus, if a document M does not suggest on its face when it was made, the admission would not M N inhibit any cross-examination on that point. Mr Liao also relies on the N judgment of the Court of Appeal in Hu Lan v David Golden [2024] 1 O O HKLRD 1252, at §40-42, citing Eco3 Capital Ltd v Ludsin Overseas Ltd P [2013] EWCA Civ 413, in support of the contention that if a party wishes P to object to another party’s challenge to the authenticity of a document Q Q contrary to the deemed admission of authenticity under Order 27, rule 4, R the former should raise an objection with the trial judge for a ruling to be R made before evidence is led, or object to the relevant cross-examination S S questioning the authenticity of the document. T T U U V V  - 21 - A A 46. There is some validity in Mr Liao’s argument that a notice to B B dispute the authenticity of the Hand Drawn Plans was not required to be C served by the Defendant before it could challenge the evidence of C TP Wong regarding the date(s) on which he allegedly created the D D Hand Drawn Plans, because those plans did not, on their face, state the E date(s) of creation of the plans. However, this complaint is immaterial E and cannot assist the Defendant in the present appeal because the F F Recorder in fact went on to consider and accept TP Wong’s evidence, and G found as a fact, that the Hand Drawn Plans were created between G May/June 2003 and August 2003 17 . The real issue is whether the H H Recorder’s finding of fact on the time of creation of the Hand Drawn I Plans can successfully be challenged by the Defendant. This issue falls I within Grounds 2 to 4 of the Supplemental Notice of Appeal, and will be J J considered below. K K 47. In passing, we should mention that it was not the Recorder’s L L ruling that the Defendant was not entitled to challenge at all the Plaintiff’s M evidence that the Hand Drawn Plans were created by TP Wong on the M dates as claimed by him. The Recorder’s ruling was more limited, N N namely, that Mr Liao should not be permitted to suggest, as he did in O cross-examination, that the Hand Drawn Plans “were only created much O P later in time, after the SF 2003 Plans (in the case of Hand Drawn Plan A) P and the SF 2005 Plans (in all other cases). In other words, it is said Q Q that they were created ex post facto, to give the impression of originality R pre-dating the SF 2003 Plans”. In this regard, it is significant that in the R Defendant’s Amended Statement of Defence dated 11 September 2020, S S the Defendant never raised any positive case as to the time of creation of T T 17 See §77 of the Judgment. U U V V  - 22 - A A the Hand Drawn Plans, or suggested that they were created ex post facto B B in order to give the impression of originality pre-dating the SF 2003 Plans. C Neither was this allegation raised in the statements of the Defendant’s C witnesses. Thus, while the Defendant was entitled to put the Plaintiff to D D strict proof of its case as regards the time of creation of the Hand Drawn E Plans and test the Plaintiff’s evidence on this matter in cross-examination, E the Defendant should not have been permitted to raise the aforesaid F F positive case at the trial. Be that as it may, for the reason mentioned at G §46 above, we do not consider that the Defendant’s complaint under G Ground 1 has any impact on the outcome of the present appeal. H H I GROUNDS 2 TO 3A: ASSESSMENT OF TP WONG’S CREDIBILITY I J 48. The Defendant complains against the Recorder’s assessment J of the credibility of TP Wong in the following aspects: K K (1) Grounds 2 and 3 - failure to consider or take into account or L L proper account of the Defendant’s Closing Submissions M dated 25 November 2022 (“D’s Closing Submissions”) M concerning the inconsistencies in the evidence of TP Wong N N in his 1st witness statement dated 15 April 2020 (“TP’s O 1st WS”) and his evidence in cross-examination in relation to O the time of creation and/or the authorship of Hand Drawn P P Plans A, C and D; Q (2) Ground 2A – wrong findings and inferences on the time of Q making of the Hand Drawn Plans; and R R (3) Ground 3A – errors in the Recorder’s finding on TP Wong’s S S overall credibility on various matters. T T U U V V  - 23 - A A (a) Grounds 2 and 3 B B 49. Under these grounds, the Defendant complains that the C C Recorder failed to deal with points raised in D’s Closing Submissions. D The appellate court’s approach in relation to this type of complaint is well D settled. In Harbour Front Ltd v Money Facts Ltd [2019] HKCA 916, E E Kwan VP (giving the judgment of the court) stated the following at §9: F F “The mere fact that certain matters relied on by counsel were not mentioned in the judgment does not mean that the G judge had not taken them into consideration. Nor is the G judge required to address all the points made by counsel, whether legal or factual. There is no suggestion in the H H draft grounds of appeal or Ms Lok’s submission that the matters the judge allegedly failed to have any or any I sufficient regard to were not raised before him first time I round. Repeating the arguments that had been made before without demonstrating how and why the judge went J wrong is of little assistance and does not begin to make out J a case that the judge’s conclusion is plainly wrong.” K K 50. It is noted that the matter before the Court of Appeal in L L Harbour Front Ltd concerned an application for leave to appeal against M an order granting an interlocutory injunction to restrain the sale or M disposal of a property, and the matters which the first instance judge N N allegedly failed to consider did not relate to the oral testimony of a O witness given at trial. However, the principle that a judge is not under a O duty to expressly deal with each and every point raised by counsel is P P equally applicable to the latter situation. As mentioned in the aforesaid Q judgment of Kwan VP, that principle applies to the duty of a judge to Q address points made by counsel, whether legal or factual. The fact that R R the relevant evidence which it is contended the judge failed to address S S was given orally instead of on affidavit makes no difference. T T U U V V  - 24 - A A 51. The same principle was stated by Rogers VP in Sun Focus B B Investment Limited v Tang Shing Bor, HCMP 2251/2009 (unreported, C 24 November 2009), at §2, and by Cheung CJHC (as he then was) in The C Incorporated Owners of Kadoorie Avenue Mansion v Rising Dragon D D International Limited, HCMP 3201/2013 (unreported, 10 April 2014), at E §6. E F F 52. Mr Liao refers to the judgment of Chan CJHC (as he then G was) in Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634 at 639 (quoted G by Lam JA (as he then was) in Welltus Ltd v Fornton Knitting Co Ltd H H [2013] 5 HKC 106, at §20) in support of the proposition that a judge is I under a duty to analyse the material points in the evidence of the case, I and give reasons as to why he has reached a particular conclusion or J J decision “to make people understand why their evidence is not accepted K by the court and why they lose in a case. Only by this can justice be K seen to be done. Furthermore, the losing party needs to be clear on L L whether there is any error in the reasons for the decision given by the M court before he can decide whether to appeal or not …”. M N N 53. We do not consider the above proposition to be controversial. O However, the question of whether a judge has failed in his/her duty to O address point(s) raised by counsel and whether the Court of Appeal P P should intervene in the judge’s decision because of such failure requires a Q careful assessment of all relevant circumstances, including the nature and Q materiality of the point(s) in question, the complexity of the case, the R R length of the trial, the substantiality of the submissions made to the judge, S S whether the party whose evidence has not been accepted or who has lost T in the case would reasonably understand why his evidence has been T U U V V  - 25 - A A rejected or why he has lost, and whether it can fairly be said that his right B B to lodge an appeal against the judgment has been prejudiced. C C 54. When carrying out this assessment, the following D D observation made by Lam VP (as he then was) in LWH v NKWS [2018] E HKCA 260, at §9, should be borne in mind: E F “This Court has repeatedly said that a judge is not obliged F to deal with each and every point raised by counsel or litigant in their evidence and submissions. It is sufficient G that the Judge gave adequate reasons to explain how the G evidence has been weighed. It is an impossible task (and very often it would do more harm than good) if a judge has H H to rebut the arguments and evidence in great minutiae. We wish to emphasize again that it is not the function of a I judgment to address each and every point in arguments or I evidence without regard to the significance of the same in the overall exercise in assessment of facts and evidence.” J J K 55. In the present case, the trial was a substantial one lasting K some 10 hearing days, and the Recorder was well assisted by experienced L L counsel who conducted careful cross-examination and made very detailed M opening and closing submissions. The Recorder gave a careful and M detailed written judgment (running to 123 paragraphs in 83 pages) N N covering all major, contentious aspects of the case. O O 56. In respect of the inconsistencies in the evidence of TP Wong P P relied on by the Defendant, as can be seen in a helpful table (“the Table”) Q annexed to Mr Chain, SC’s Skeleton Submissions for the Plaintiff dated Q 30 September 2025, full submissions on those matters had been made by R R 18 Mr Liao in his written and oral closing at the trial . Two of the main S points raised by Mr Liao concerned the authorship and time of making of S T T 18 See the second row on the first page of the Table. U U V V  - 26 - A A Hand Drawn Plan C (relating to the berthing fender). In respect of the B B former, Mr Liao criticized the evidence of TP Wong by reference to the C inconsistencies between (i) his evidence in TP’s 1st WS that the Hand C Drawn Plans were all drawn by him personally, although he had received D D some minor clerical and scribal assistance from Ho Chung Kui and Lai E Chi Wai of Chung Wai Engineering Company in relation to the E preparation of some of the Hand Drawn Plans and they had done some F F rough sketching in making minor changes to the Hand Drawn Plans G exactly following his instructions, and (ii) his oral evidence that one G (relating to the berthing fender) and possibly another (relating to the H H barging conveyor) of the Hand Drawn Plans were drawn by Ho Chung I Kui and/or Lai Chi Wai but according to his design. In our view, I notwithstanding such inconsistencies, it is clear that TP Wong’s evidence J J was to the effect that Ho Chung Kui and Lai Chi Wai, whatever might K have been their exact involvement, followed his design or instructions in K relation to the preparation of the relevant plans. The Recorder was fully L L aware of the inconsistency in the evidence of TP Wong relied upon by Mr M M Liao concerning the authorship of the Hand Drawn Plan C (relating to the N berthing fender), but did not consider that it affected the credibility of N TP Wong’s evidence . In our view, the inconsistency in the evidence of 19 O O TP Wong was not of such significance or importance that it was not P reasonably open to the Recorder to find him a credible and reliable P witness. Even if one or two of the Hand Drawn Plans were prepared by Q Q Ho Chung Kui and/or Lai Chi Wai, there was no suggestion that the R copyright subsisting in those plans belonged to them or their employer R instead of the Plaintiff. S S T T 19 See §77(5)(a) of the Judgment. U U V V  - 27 - A A 57. Another inconsistency in the evidence of TP Wong B B emphasized by Mr Liao concerns the time of creation of Hand Drawn C Plan C: (i) in TP’s 1st WS, his evidence was to the effect that the C Hand Drawn Plans were created in June 2003, whereas (ii) in his oral D D evidence, he said that Hand Drawn Plan C was made in August 2023. E The Recorder was plainly aware of this criticism of the evidence of E TP Wong, but did not find such criticism to be convincing20. Again, we F F consider that the Recorder was entitled to come to that view, and found G that Hand Drawn Plan C was created in August 2003 by Lai Chi Wai G according to TP Wong’s instructions21. H H I 58. When considering whether it would be justified for this I Court to intervene in the Recorder’s assessment of the credibility of J J TP Wong, it is, we consider, also relevant to take into account the central K point that the Defendant sought to make at the trial, namely, that the K Hand Drawn Plans were in fact made much later in time, after the L L SF 2003 Plans (in the case of Hand Drawn Plan A) and the SF 2005 Plans M (in all other cases), and they were created ex post facto to give the M impression of originality predating the SF 2003 Plans 22. However, as N N found by the Recorder, there were striking or substantial similarities O between the KT Plans (which were indisputably created in late June/early O P July 2003, and some of them were strikingly similar to the Hand Drawn P 23 Plans), and the SF 2003 Plans . Although there was no KT Plan for the Q Q barging conveyor or berthing fender (because in late June/early July 2003 R there were still some uncertainties on the 2 issues referred to at §77(1)(d) R S 20 S See §§77(1)(d) and (5)(c) of the Judgment. 21 See §§72(1), 77(1)(d) and 5(c) of the Judgment. 22 T See §73 of the Judgment. T 23 See §§23 and 78-82 of the Judgment. U U V V  - 28 - A A of the Judgment 24 ), the central point that the Defendant wished to B B advance was plainly unsustainable. C C 59. In the Supplemental Notice of Appeal, the Defendant refers D D to some other bits and pieces of the evidence raised in D’s Closing E Submissions which the Defendant complains the Recorder failed to E consider, including (i) the suggestion that the measurement of 5171mm in F F Hand Drawn Plan C for the berthing fender was odd and unbelievable, (ii) G TP Wong’s oral evidence that Hand Drawn Plan D for the barging G conveyor, made in July/August 2003, should have depicted/displayed a H H second counterweight but this feature was not found in the relevant I SF 2003 Plans but found in P’s Installation in 2004, thus indicating that I Hand Drawn Plan D could not have been made before or for the SF 2003 J J Plans as alleged in TP’s 1st WS, (iii) why the second counterweight in the K Hand Drawn Plan D was not shown in SF 167 (one of the SF 2003 Plans); K and (iv) the appearance of some similar features shown on plans prepared L L by Gammon/Lambeth (ie Gammon Tender Plans/SF 2003 Plans), M including Gammon’s/Lambeth’s own drawing number and plan title, in M Hand Drawn Plan A (layout). N N O 60. As observed by the Recorder, Mr Liao had subjected O TP Wong to very extensive and protracted cross-examination on these P P matters. He also made detailed submissions on them to the Recorder in Q his closing submissions at the trial25. There is no reason to believe that Q the Recorder was not fully aware of the points made by Mr Liao, or did R R not take them into account when assessing TP Wong’s evidence. The S S 24 T See §80 of the Judgment. T 25 See the second row on the first page of the Table. U U V V  - 29 - A A Recorder came to the view that TP Wong’s testimony had held up despite B B extensive cross-examination, and was credible and genuine 26. We do C not consider the Recorder was required to expressly deal with the above C relatively minor matters in the Judgment, or her omission to do so is D D sufficient to lead us to intervene in her assessment of the overall E credibility of TP Wong. E F F (b) Ground 2A G G 61. Under this ground, the Defendant argues that the Recorder H wrongly came to findings and inferences on the time of making of the H Hand Drawn Plans. In support of this argument, the Defendant relies on I I 2 matters: J (1) Contrary to the pleadings, the Recorder wrongly found that J K the Hand Drawn Plans were provided to Lambeth during the K period “between July 2003 and February 2004” (Judgment, L L §74), when in fact the relevant request for Further and Better M Particulars referred to SF 106 (one of the SF 2003 Plans) for M the sheetpile wall only. Further, the Recorder’s finding was N N contrary to the evidence in TP’s 1st WS that the alleged Hand O Drawn Plans were made in June 2003. O (2) The Recorder wrongly found it consistent that the alleged P P Hand Drawn Plan D (barging conveyor) depicting a Q weighing hopper was made in or after August 2003 (as Q opposed to June 2003 as alleged in TP’s 1st WS), in that the R R weighing hopper had always appeared in Gammon Tender S S Plan T02277-006 dated 10 December 2002 and in later plans T T 26 See §49 of the Judgment. U U V V  - 30 - A A and drawings before August 2003 (Judgment, §§77(1)(d), B B 77(3) and 80). The Recorder failed to find that TP Wong C was an unreliable witness in conveniently shifting the C alleged time of making of the Hand Drawn Plan D from June D D to August 2003 during cross-examination. E E 62. There is no merit in either of these points. F F G 63. The argument mentioned at §61(1) above is based on an G incorrect reading of §74 of the Judgment, where the Recorder stated the H H following: I I “… the existence and the Plaintiff’s reliance on the Hand Drawn Plans had been pleaded in the original Statement of J Claim dated 26 May 2014 (in paragraph 8(v)(b)), copies J had been disclosed in the Plaintiff’s Answers to the Request K for Further and Better Particulars on 4 November 2014, and K in those Answers the Plaintiff had provided a time period of between July 2003 and February 2004 (request 2) during L which it said the Hand Drawn Plans were provided to L Lambeth (request 4).” M M 64. In the above passage, the Recorder was not making any N N finding that the Hand Drawn Plans were provided to Lambeth between O July 2003 and February 2004. The Recorder was merely referring to O certain answers given in the Plaintiff’s Answers to the Request for P P Further and Better Particulars on 4 November 2014 which the Recorder Q understood the Plaintiff to be saying that the Hand Drawn Plans were Q provided to Lambeth between July 2003 and February 2004. The fact R R that the Plaintiff’s answers were given in relation to a request which only S referred to SF 106 for the sheetpile wall, or that the Plaintiff’s answers S may be open to different interpretations is neither here nor there. The T T Recorder’s finding that the KT Plans, which were prepared based on the U U V V  - 31 - A A Hand Drawn Plans, were provided to Lambeth is to be found at §82 of the B B Judgment, where the following was stated: C C “Although Jacky Wong denies that he or Lambeth had ever received the KT Plans, given (i) there was a letter dated D 8 July 2003 showing the KT Plans had been submitted by D Win Hing to Gammon, and (ii) the substantial similarities between the KT Plans and some of the SF 2003 Plans E E identified above, I reject his evidence (see also §§53 to 56 above). I find that the KT Plans had been provided to F Lambeth, and that Lambeth had copied them in generating F the SF 2003 Plans above.” G G 65. As regards the time of creation of Hand Drawn Plan D, H H notwithstanding what was stated in TP’s 1st WS, the Recorder accepted I TP Wong’s oral evidence that it was created in around August 2003 27. I The Recorder was entitled to do so. J J K 66. In respect of the argument mentioned at §61(2) above, there K is no inconsistency between (i) the fact that a weighing hopper had L L always appeared in Gammon Tender Plan T02277-006 dated M 10 December 2002 and in later plans and drawings before August 2003, M and (ii) TP Wong’s evidence that Hand Drawn Plan D (barging conveyor) N N depicting a weighing hopper was made in or after August 2003. Further, O as noted by the Recorder at §77(3) of the Judgment, “it was only in or O after August 2003 that the PB Project employer insisted the weigh hopper P P could not be dispensed with. I also note that in the first version of the Q relevant SF 2003 Plan for the elevation view of the barging conveyor Q (SF167) in August 2003 there was no weighing hopper, but a weighing R R hopper was added back in the September 2003 revision of it”. The S Recorder considered these facts to be consistent with, and supportive, of S T T 27 See §77(1)(d) of the Judgment. U U V V  - 32 - A A TP Wong’s evidence that Hand Drawn Plan D (amongst others) was only B B created in around August 2003 when it became clear (consequent upon C negotiations with the PB Project employer) that the PFSF (i) must include C a weighing hopper at the beginning of the barging conveyor; and D D (ii) nothing could be erected on the seabed or attached to the seawall to E act as support to the barging conveyor, so that the latter’s design would E have to cater for that28. We do not see any error in this reasoning of the F F Recorder. G G (c) Ground 3A H H 67. Under this ground, the Defendant challenges the Recorder’s I I finding on TP Wong’s overall credibility, arguing that: J (1) The Recorder was wrong to find that TP Wong “readily gave J K answers which he must have understood to be unfavourable K to the Plaintiff” (Judgment, §49), because she had failed to L L take into account or proper account the fact that (i) the M Plaintiff did not disclose any Gammon Tender Plans in its M Statement of Claim dated 26 May 2014, and it was only after N N Sharon’s disclosure of the those plans in October 2019 that O the Plaintiff’s disclosed the same by amending its Statement O of Claim in August 2020, (ii) the Plaintiff abandoned its P P claims based on SF 130 and SF 131 for covered tunnel only Q on the first day of the trial and after service of the Q Defendant’s opening submissions, and it was only during R R cross-examination that TP Wong admitted/conceded that “he S S T T 28 See §77(1)(d) of the Judgment. U U V V  - 33 - A A copied the covered tunnel and truss plans from the Gammon B B plans in other earlier projects”. C (2) The Recorder was wrong to find that (i) the meetings with C Mr Hau Chi Chiu (“Mr Hau”) of Gammon and (ii) the D D supply of TKO 137 plans by Gammon for TP Wong to E E prepare Hand Drawn Plans A and D were not material but F were fine details only to be “teased out” in F cross-examination, and further was wrong to find that TP G G Wong’s answers on these matters “were not in any way H inconsistent with the facts and chronology he has already H deposed to in his witness statements …” (Judgment, §§50, I I 62(3) and 77(5)(a)). J (3) In considering the testimony of TP Wong and Jacky Wong as J to how the SF 2003 Plans were created, the Recorder also K K erred in the following matters – L L (a) failing to take into account TP Wong’s lack of M professional qualifications as a structural engineer and M experience to design particularly the barging conveyor N N and berthing fender, which were unique or particular O design challenges; O P (b) failing to find that TP Wong was unable to provide P clear and detailed explanations on how he came up Q Q with the design particularly the barging conveyor and R berthing fender; and R (c) wrongly finding that Jacky Wong provided S S inconsistent explanation on the change of the berthing T fender from the initial straight-line design to the T U U V V  - 34 - A A cantilever (bent) design, when TP Wong provided the B B same explanation for the change due to the height of C the mooring position of the barge. C D D 68. The Defendant’s complaints under Ground 3A are, in E substance, mere disagreements with the Recorder’s findings. It is trite, E however, that the assessment of a witness’s credibility falls within the F F province of a trial judge, and his/her finding of fact on a matter (whether G primary or inferential) is not to be overturned merely because the appeal G court may reach a different conclusion on the matter. The appeal court H H may properly intervene in a finding of fact made by a trial judge only I when the finding is plainly wrongly, or the judge has made a palpable I error, such as when there was no evidence to support the finding, or it J J was based on a misunderstanding of the evidence, or one which no K K reasonable judge could have made. L L 69. In respect of the detailed points raised by the Defendant: M M (1) We do not see that the 2 matters referred to at §67(1) above N have any direct bearing on, or undermine, the Recorder’s N observation at §49 of the Judgment that TP Wong “readily O O gave answers which he must have understood to be P unfavourable to the Plaintiff’s case, eg his admitting that he P had been provided with the Gammon Tender Plans which he Q Q had looked at …”. R R (2) The matters referred to at §67(2) above were considered by S the Recorder. She was entitled to reach the views that she S did on those matters. T T U U V V  - 35 - A A (3) The Recorder clearly explained why she accepted the B B evidence of TP Wong and rejected the evidence of Jacky C Wong in relation to the issue of how the SF 2003 Plans were C created. In particular, in respect of the matters referred to D D at §67(3)(a) and (b) above, the Recorder was fully aware of E the fact that TP Wong had no professional qualification as a E structural engineer, but considered that he “clearly has F F extensive experience in sorting materials, the equipment G involved, how to create a process and also build the G structure for it … I accept his testimony that through his H H many years of experience he has a good working I understanding of conveyor trusses and steel members and I what loading they can support such that he was able to J J determine what should be used to create structures to cater K for specified loading”29, and was able “to supplement the K documentary evidence with detailed explanations on how he L L came up with each of the components in the PFSF identified M M in §37 [of the Judgment] in his witness statements and oral N testimony” 30 . In respect of the matter referred to at N §67(3)(c) above, the Recorder was critical of the evidence of O O Jacky Wong not because of the substance of the explanation P he gave for the change of the berthing fender from the initial P straight-line design to the cantilever (bent) design, but Q Q because of the inconsistent evidence contained in Jacky’s R Chun Wo WS and his oral testimony. R S S 29 T See §84(1) of the Judgment. T 30 See §84(3) of the Judgment. U U V V  - 36 - A A 70. In all, we do not see that there is any valid criticism of the B B Recorder’s assessment of the overall credibility of TP Wong. C C GROUND 3B: ASSESSMENT OF JACKY WONG’S CREDIBILITY D D 71. Under Ground 3B, the Defendant argues that the Recorder E E wrongly and unfairly took the “Hand Drawn Draft plans” described in F §36 of TP Wong’s witness statement dated 19 September 2016 filed in the F Chun Wo Proceedings (“TP’s Chun Wo WS”) and subsequently referred G G to in Jacky’s Chun Wo WS to be the same Hand Drawn Plans alleged and H produced by TP Wong in this action (Judgment, §§54(2), 84(4) and 85(2)). H The Defendant points to the fact that the Plaintiff never disclosed TP’s I I Chun Wo WS or the “Hand Drawn Draft plans” referred to therein in this J action. Instead, it opposed the Defendant’s application at the PTR J hearing for specific discovery of documents in that action which would K K have included the aforesaid two witness statements and the “Hand Drawn L Draft plans” referred to therein. L M M 72. The Defendant’s complaints under this ground are N unjustified. In Jacky Wong’s witness statement filed in the present N action on 10 August 2022 (“Jacky’s WS”), he was content to adopt the O O contents of Jacky’s Chun Wo WS as his evidence without any P qualification. At §5 of Jacky’s Chun Wo WS, he stated that “Mr Hau31 P provided me with the Hand–Drawn Draft plans as described in Q Q paragraph 36 of [TP’s Chun Wo WS]” which he understood “had set out R the intended arrangement and equipment proposed by the Plaintiff for the R PFSF at Tseung Kwan O Area 137”. It was not the Defendant’s case at S S the trial that there were 2 different sets of Hand Drawn Plans for TKO137 T T 31 Project manager of Gammon. U U V V  - 37 - A A PFSF. At the time when Jacky Wong made his witness statement in this B B action in August 2022, the Plaintiff had already disclosed copies of the C Hand Drawn Plans in the Answer to Request for Further and Better C Particulars of the Plaintiff’s Statement of Claim dated 4 November 2014 32. D D If the “Hand–Drawn Draft plans” referred to in Jacky’s Chun Wo WS that E he said he had received from Mr Hau were different from the E Hand Drawn Plans disclosed by the Plaintiff in this action, he could F F easily have said so in either Jacky’s WS or in his oral evidence. He did G neither. Instead, in his oral evidence, he said that he had not in fact seen G §36 of TP’s Chun Wo WS, and had not confirmed what plans were H H referred to by TP Wong at §36 of his said statement, prior to his signing I of Jacky’s Chun Wo WS. Jacky Wong’s oral evidence was, on its face, I at odds with what he had said in Jacky’s Chun Wo WS. It was a matter J J for the Recorder to assess Jacky Wong’s evidence. The Recorder plainly K did not accept his oral evidence 33. There was nothing unfair in the K Recorder’s assessment of the evidence. L L M 73. As for the Defendant’s argument that the Plaintiff was not M entitled to rely on the inconsistency in Jacky Wong’s written and oral N N evidence because the Plaintiff had opposed the Defendant’s application O for specific discovery of documents filed in the Chun Wo Proceedings at O P the PTR hearing, it was a matter entirely for the Defendant to decide P whether to pursue its application for specific discovery if it considered Q Q that the application had merit and, if the application was not successful, to R lodge an appeal against any unfavourable ruling. The Defendant’s R S S 32 T See §74 of the Judgment. T 33 See §54(2) and (3) of the Judgment. U U V V  - 38 - A A attempt to put the blame on the Plaintiff for opposing the Defendant’s B B application is wholly without merit. C C GROUND 4: DRAWING OF ADVERSE INFERENCES D D 74. Under Ground 4, the Defendant argues that the Recorder E E erred in failing to draw adverse inferences against the Plaintiff/TP Wong F for opposing the Defendant’s application to subpoena documents and F Mr Hau of Gammon, and failing to call Ho Chung Kui and Lai Chi Wai G G of Chung Wai Engineering Company34 and representative(s) of Kin Tat H who, as it transpired from TP Wong’s oral evidence, were highly material H witnesses. I I J 75. This ground can be dealt with shortly. The drawing of J adverse inference against a party for failing call a witness who may be K K expected to be able to give material evidence on an issue in the case is L neither an inflexible rule nor a mechanistic exercise. Generally L speaking, there must be a prima facie case on the issue before the court M M may properly draw an adverse inference against a party for not calling N such a witness. Further, if there is a plausible explanation as to why the N witness was not called by a party, the court should not draw an adverse O O inference against that party. Lastly, whether to draw an adverse P inference is a matter for the judge depending on all relevant P circumstances. The Court of Appeal will not lightly interfere with the Q Q judgment of the judge on such a matter. See DBS Bank (Hong Kong) R Ltd v Sit Pan Jit [2016] 5 HKC 104, at §88 per Poon JA (as he then was). R S S 34 Chung Wai Engineering Company was the sub-sub-sub-contractor engaged by the T Plaintiff for the steel structure fabrication and mechanical installation of the PFSF T apparatus. U U V V  - 39 - A A 76. In respect of the specific points raised by the Defendant: B B (1) Insofar as the Plaintiff’s opposition to the Defendant’s C application made at the trial to subpoena Gammon for C production of documents and call Mr Hau to give oral D D testimony is concerned, such application was refused by the E E Recorder for 2 reasons: (i) lateness of the application to F expand on the scope of the evidence without good F explanation (the Defendant’s explanation based on the late G G engagement of legal team was not accepted by the Recorder), H and (ii) absence of information or clarity as to the scope or H 35 extent of the new evidence sought to be introduced . I I These were perfectly good reasons given by the Recorder for J refusing the Defendant’s application. The Plaintiff was J entitled to oppose the Defendant’s application. In our view, K K there could be no proper basis to draw any adverse inference L against the Plaintiff for opposing the Defendant’s L application. M M (2) Insofar as the Plaintiff’s failure to call witness(es) is N N concerned, this matter was expressly considered by the O Recorder, who took the view that (i) the Defendant had not O established any prima facie case on any relevant issue which P P the Plaintiff could, but failed to, call an available witness to Q displace the prima facie case, and (ii) the testimony of the Q alleged “missing” witness identified by Mr Liao at the trial R R (namely, Mr Hau of Gammon) was not material. The S S T T 35 See §45 of the Judgment. U U V V  - 40 - A A Recorder was entitled to come to such views and refused to B B draw any adverse inference against the Plaintiff36. C C GROUNDS 5 TO 8: OWNERSHIP OF COPYRIGHT SUBSISTING IN D THE SF 2003 PLANS AND P’S INSTALLATION D E (a) Ground 5 E F 77. Under this ground, the Defendant argues that the Recorder F wrongly interpreted the Main Contract between the Government and G G Gammon, the Sub-contract between Gammon and Win Hing, and the H Sub-sub-contract between Win Hing and the Plaintiff, in finding that H under the Sub-sub-contract, the responsibility for the design of the I I TKO137 PFSF and the copyright associated with the same vested in the J Plaintiff. J K K 78. Two different, but related, issues are raised under this L ground: L M (1) whether the Plaintiff was responsible for the design of the M TKO137 PFSF; and N N (2) whether the Plaintiff was the owner of the copyright O O subsisting in the SF 2003 Plans and P’s Installation, P P under the contractual arrangements amongst Gammon/Win Hing/the Q Q Plaintiff. R R 79. The answer to the first issue depends on the true construction S S of the contracts amongst Gammon, Win Hing, and the Plaintiff. The T T 36 See §62 of the Judgment. U U V V  - 41 - A A following provisions in the Main Contract, Sub-contract and B B Sub-sub-contract are relevant for the present purpose: C C (1) PS Appendix 6.2 of the Main Contract – D D (a) Clause 6.2.1(1) provides that the “Contractor” (ie E Gammon) shall design, construct, install, operate, E maintain, and eventually remove the PFSF on land F F designated for PFSF under the Main Contract. G (b) Clause 6.2.1(7) provides that the PFSF are temporary G H works and shall be designed by the Contractor in H accordance with the SCC 18. I I (c) Clause 6.2.4(1) provides that as part of the design, the J Contractor shall submit the system, design, operation J and maintenance details of the PFSF, together with the K K checking certificates issued and signed by the L approved independent checking engineer to the L Engineer within 45 days of the commencement of the M M Main Contract for consent. N (2) The Special Conditions of Contract (“SCC”) of the Main N Contract – O O (a) By SCC 10(1), “Contractor’s Design” is defined to P P mean that part or those parts of the design of the Q permanent works for which the Contractor has elected Q or is required to prepare design calculations and R R drawings and which has been accepted by the S Employer (ie the Government). S (b) SCC 10(13)(a) provides that except in respect of those T T intellectual property rights referred to in sub-clause (c), U U V V  - 42 - A A the Contractor undertakes and warrants to the B B Employer that it is the sole legal and beneficial owner C of all intellectual property rights subsisting in the C Contractor’s Design. D D (c) SCC 10(13)(c) provides that to the extent that the E E beneficial ownership of any intellectual property F rights in the Contractor’s Design is vested in anyone F other than the Contractor, the Contractor shall procure G G that the relevant beneficial owner shall grant a licence H to, inter alia, the Employer to utilize the Contractor’s H Design. I I (d) SCC 18(1) provides that when considered necessary J by the Contractor or specified in the Main Contract or J subsequently ordered by the Employer, the design of K K any “Temporary Works” shall be checked and certified L by an engineer independent of the Contractor and not L associated with the design of the Temporary Works. M M (3) The Sub-contract between Gammon and Win Hing contained N N in Gammon’s letter of 27 June 2003 provides that the O conditions of contract between them shall be in substantially O the same form as Gammon’s Standard Form of Sub-Contract P P but subject to such amendments “as are necessary to fully Q reflect the requirements in respect of the above mentioned Q works [ie the works for the TKO137 PFSF] as are contained R R in [the Main Contract]”. As observed by the Recorder, the S Sub-contract is a “back-to-back” contract vis-à-vis the Main S Contract. T T U U V V  - 43 - A A (4) The quotation from the Plaintiff to Win Hing dated 23 June B B 2003 expressly provides, inter alia, that (i) the Plaintiff is C required to install a PFSF plant as specified in a method C statement attached to the quotation (which, as mentioned by D D the Recorder, includes various hand-drawn plans showing E the design thereof)37, and (ii) for the avoidance of doubt, the E sub-contractor (ie the Plaintiff) should carry out the F F sub-contract works in accordance with the specifications and G requirements of the Main Contract, including PS Appendix G 6.2. H H (5) The Sub-sub-contract between Win Hing and the Plaintiff I I contained in Win Hing’s letter of 28 June 2003 refers, J inter alia, to the Plaintiff’s said quotation and states that the J conditions of contract between them “shall be [in] the same K K form as [Gammon] to Win Hing, but subject to such L amendments as are necessary to fully reflect the L requirements in respect of the above mentioned works [ie the M M works for the TKO137 PFSF] as are contained in [the Main N Contract]…”. N O O 80. The clear effect of the above contractual provisions is that as P between (i) the Government and Gammon, (ii) Gammon and Win Hing, P and (iii) Win Hing and the Plaintiff, Gammon, Win Hing and the Plaintiff Q Q were respectively responsible for, inter alia, the design, construction and R installation of the TKO137 PFSF. R S S T T 37 See §107(6)(c) of the Judgment. U U V V  - 44 - A A 81. In our view, the Recorder was correct to find that under the B B Sub-sub-contract, the responsibility for the design of the TKO137 PFSF C fell on the Plaintiff. C D D 82. The answer to the second issue mentioned at §78(2) above E requires an examination of the statutory scheme relating to the ownership E of copyright under the Ordinance. For the purpose of the present F F discussion, the following provisions of the Ordinance are relevant: G (1) Authorship of work – s 11(1) defines “author”, in relation to G H a work, to mean “the person who creates it”. H (2) First ownership of copyright - s 13 provides that “The author I I of a work is the first owner of any copyright in it, subject J to sections 14, 15 and 1638.” J K (3) Employee works - s 14(1) provides that “Where a literary, K dramatic, musical or artistic work, or a film, is made by an L L employee in the course of his employment, his employer is M the first owner of any copyright in the work subject to – (a) M any agreement to the contrary; and (b) subsection (2) [not N N relevant for the present purpose].” O (4) Commissioned works – s 15(1) provides that “Where a work O is made on the commission of a person and there is an P P agreement between the author and the commissioner of the Q Q work which expressly provides for the entitlement to the R copyright, copyright in the commissioned work belongs to R S S 38 T Section 16 of the Ordinance relates to “Government copyright, etc” and is not T relevant for the present purpose. U U V V  - 45 - A A the person who is entitled to the copyright under the B B agreement.” C C 83. In the present case, the Recorder found that (i) TP Wong was D D the person who created the SF 2003 Plans and P’s Installation, and (ii) E TP Wong was at all material times acting in the course of his employment E by the Plaintiff, and there was no suggestion of any agreement to the F F contrary between them as regards the ownership of the copyright G subsisting in the SF 2003 Plans and P’s Installation. It follows that, G subject to s 15, the Plaintiff should be regarded as the first owner of the H H copyright. I I 84. On the basis that the Plaintiff created the SF 2003 Plans and J J P’s Installation upon the commission of Gammon (through Win Hing) K within the meaning of s 15(1), the question is whether there was any K agreement amongst the Plaintiff/Gammon/Win Hing which expressly L L provided for the entitlement to the copyright subsisting in the SF 2003 M Plans and P’s Installation. No such express agreement can be found in M N the Sub-contract between Gammon and Win Hing, or in the N Sub-sub-contract between Win Hing and the Plaintiff. The Recorder O O was correct to find that the copyright associated with the design of the P TKOP137 PFSF (ie the SF 2003 Plans and P’s Installation) vested in the P Plaintiff. Q Q R 85. The Defendant raises three specific arguments in support of R Ground 5. First, it is argued that the Recorder erred in holding that S S under the Main Contract, SCC 10 would apply to the works the design of T which Gammon was responsible including the PFSF and/or was relevant T U U V V  - 46 - A A to the execution of the PFSF works. The Defendant contends that upon B B the proper construction of the Main Contract, SCC 10 did not govern the C responsibility for the design, and would apply only to permanent works, C as opposed to temporary works to which SCC 18 would instead be D D applicable. It was thus wrong for the Recorder to hold that SCC 10 was E relevant to the execution of the PFSF works, which was specified in PS E Appendix 6.2 of the Main Contract as a temporary work, under the F F Sub-contract and the Sub-sub-contract. G G 86. This argument has no merit. Assuming, for the purpose of H H the Main Contract, that the TKO137 PFSF should be regarded as I “temporary works” falling outside the scope of “Contractor’s Design” as I that expression is defined in SCC 10(1), and SCC 10 has no relevance or J J application to the works associated with the execution of the TKO137 K PFSF, as earlier mentioned, it is the clear effect of the contractual K arrangements amongst Gammon/Win Hing/the Plaintiff that the Plaintiff L L is responsible for the design of the TKO137 PFSF. As found by the M Recorder, TP Wong, acting in the course of his employment by the M Plaintiff, created the SF 2003 Plans and P’s Installation. It follows from N N this finding that the Plaintiff is the owner of the copyright subsisting in O the SF 2003 Plans and P’s Installation, and this conclusion is not O P displaced by anything in the relevant contractual arrangements amongst P Gammon/Win Hing/the Plaintiff. Q Q 87. Second, the Defendant argues that SCC 10(13) only R R provided for a warranty and undertaking as to the ownership of copyright, S S or licence to use copyright works, and did not have the effect of vesting T any copyright in the Plaintiff. This argument does not assist the T U U V V  - 47 - A A Defendant, because the Plaintiff is entitled to the ownership of the B B copyright subsisting in the SF 2003 Plans and P’s Installation not by C virtue of SCC 10, but by the combined operation of the aforesaid C statutory provisions as applied to the facts of the present case. D D E 88. Third, the Defendant argues that the Recorder’s finding that E the Plaintiff’s proposal and the price it quoted to Win Hing included the F F design of the TKO137 PFSF is contrary to TP Wong’s evidence. This G argument is based on an incorrect reading of TP Wong’s evidence. In G the cross-examination of TP Wong relied on by the Defendant39, what H H TP Wong said was that, under the Sub-sub-contract, the Plaintiff did not I “sell” the design to Gammon. It was not his evidence that the Plaintiff’s I proposal and the price it quoted to Win Hing did not include the design of J J the TKO137 PFSF, or that the Plaintiff was not responsible for the design K of the TKO137 PFSF. In fact, when Mr Liao submitted in the course of K his oral closing submissions at the trial that TP Wong accepted that “it’s L L not part of his job to design under the contract of the appointment, the M quotation. That’s what he said”, the Recorder immediately corrected M him and pointed out that was not what TP Wong said 40. N N O 89. In passing, we note that, under s 11(3), it is provided that “In O the case of a literary, dramatic, musical or artistic work which is P P computer-generated, the author is taken to be the person by whom the Q arrangements necessary for the creation of the work are undertaken”. Q However, as recorded by the Recorder at §109(2) of the Judgment, R R although Mr Liao sought to raise an issue based on that provision in his S S 39 T See Bundle E1/Tab 248/1470-1471. T 40 See Bundle E2/Tab 254/1731 lines O-T. U U V V  - 48 - A A opening submissions, he subsequently confirmed that he would no longer B B pursue that point. The Defendant has not sought to revive this point in C the Supplementary Notice of Appeal. Accordingly, it is not necessary C for us to consider the potential applicability of s 11(3) to the present case. D D E (b) Grounds 6 and 6A E F 90. Under these grounds: F (1) The Defendant argues that the Recorder erred in finding that G G the Plaintiff was the sole owner of the copyright in the H SF 2003 Plans, and consequently had not considered the case H of joint ownership between the Plaintiff and I I Gammon/Lambeth. J J (2) The Defendant places particular reliance on the Gammon K Copyright Statement. The Defendant further submits that, K on each of the SF 2003 Plans, it is stated that it was drawn, L L designed, checked and approved by named individuals M including Jacky Wong who were members of the Lambeth M team, and Gammon’s name appears as the publisher. The N N named individuals, alternatively Lambeth/Gammon, are/is O presumed to be the owner(s) of the copyright under s 115(2) O and (4). The Defendant contends that the Recorder P P wrongly found that the Plaintiff had successfully rebutted the Q presumption. Q R (3) The Defendant also complains that the Recorder failed to R identify any and all particular authorial contributions from S S TP Wong in connection with the making of various SF 2003 T Plans referred to in sub-paragraphs (a) to (e) of Ground 6A. T U U V V  - 49 - A A 91. We do not accept these arguments. B B C 92. Section 115 provides, relevantly for the present purpose, as C follows: D D “(1) The following presumptions apply in proceedings E brought by virtue of this Division with respect to a E literary, dramatic, musical or artistic work. F (2) Where a name purporting to be that of the author F appeared on copies of the work as published or on the work when it was made, the person whose name G G appeared is presumed, until the contrary is proved - H (a) to be the author of the work; H (b) to have made it in circumstances not falling I within section 14(1), 182, 184 or 188 (works I produced in course of employment, Government copyright, Legislative Council J J copyright or copyright of certain international organizations). K K … L (4) Where no name purporting to be that of the author L appeared as mentioned in subsection (2) but a name purporting to be that of the publisher appeared on M M copies of the work as first published, the person whose name appeared is presumed, until the N contrary is proved, to have been the owner of the N copyright at the time of publication.” O O 93. By reason of the above provisions of s 115, there is a P P presumption that the copyright in the SF 2003 Plans is owned by the Q named author or publisher. However, it is not in dispute that such Q presumption is rebuttable. The Recorder found as a fact TP Wong was R R the person who created the SF 2003 Plans. Her detailed reasons for the S finding that TP Wong was the author of the SF 2003 Plans are fully set S out in Section F.2 (§§71-86) of the Judgment, and will not be repeated T T here. She accordingly held that the presumption under s 115 had been U U V V  - 50 - A A rebutted (§108 of the Judgment). The Recorder’s reasoning is sound. B B We see no basis to disturb the Recorder’s conclusions on these matters. C C 94. On the basis that TP Wong was the author of the SF 2003 D D Plans and, as found by the Recorder, Lambeth’s role was no more than E one of “scribe”, the Recorder was correct to take the view that the issue E of “joint authorship” did not fall to be considered41. F F G 95. Under Ground 6A(a) to (e), the Defendant seeks to challenge G the Recorder’s detailed findings of fact set out in a table at §89 of the H H Judgment for rejecting the Defendant’s contention that with respect to a I number of SF 2003 Plans, they were in fact based on some earlier I drawings or antecedent materials (referred to as “Gammon Tender Plans”, J J “K Wah quarry plan” “Equipment installation drawing”. “Equipment K sales brochure” and “MTRC 612 drawing”) and hence were not original, K and contends that the Recorder “should have” made some different L L findings. We have considered the findings made by the Recorder in M each instance. Those findings are reasonable, and are fairly open to her. M It has not been shown that the Recorder has made any palpable errors, or N N her findings are obviously wrong. The fact that the Defendant does not O agree with the Recorder’s findings and considers that the Recorder ought O to have made some different findings in its favour because of points P P advanced in closing submissions on its behalf is not a ground which Q would justify appellate intervention. The following statement of Q principle of Cheung JA in his recent judgment in Man Kwong Kau v R R Wong Wai Hong [2024] HKCA 505, at §19 bears repetition: S S T T 41 See §§85(8), 86 and 109(1) of the Judgment. U U V V  - 51 - A A “The applicable principles concerning appeals against B findings of fact made by a primary judge are well settled: B Yu Pak Kan v Busy Firm Investment Ltd [2023] HKCA 105, [19]: C C (1) The Court of Appeal can only intervene in a finding of fact by a primary judge where the finding is D D plainly wrong. E (2) It is a misuse of the appellate process to place before E the Court of Appeal submissions which, in substance, are (or should be) submissions advanced by way of F closing submissions at the trial after the judge has F heard all the evidence. G G (3) In an appeal, the Court of Appeal focuses on the question whether the primary judge has fallen into H palpable errors which could give rise to grounds for H intervention by the appellate court. It is not germane that the Court of Appeal may reach a I I different conclusion from that of the judge. J (4) It is not helpful for counsel and litigants in person to J merely repeat submissions already advanced and considered by the primary judge at the trial. The K starting point should be the judgment of the primary K judge and the identification of palpable errors (which must be errors of such nature which warrant L L intervention by the Court of Appeal) in the judgment. The mere assertion that the finding of the judge is M against the weight of the evidence or that the judge M should have reached another conclusion because of points advanced in the closing submissions below N N are not errors coming within that category. O (5) Where a trial judge has reached a conclusion on the O primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are: P i) where there was no evidence to support the P conclusion, ii) the conclusion was based on a misunderstanding of the evidence, or iii) the Q Q conclusion was one which no reasonable judge could have reached. R R (6) With the recognition of the rationale for appellate restraint, there is also a greater appreciation of the S need to exercise restraint in respect of findings of S secondary facts based on inference drawn from T findings of primary fact.” T U U V V  - 52 - A A (c) Grounds 6B, 6C and 7 B B 96. The same comments mentioned in §95 above apply to C C Grounds 6B, 6C and 7, under which the Defendant challenges the D Recorder’s reasons set out in (i) a table at §81 of the Judgment for finding D that 6 of the SF 2003 Plans (namely, SF 101, 102, 103, 110, 111 and 120) E E were based on and copied from the corresponding KT Plans (namely, 001, F 002, 010, 011, 012 and 020), and (ii) a table at §86(2) of the Judgment for F finding the remaining SF 2003 Plans were created on the instructions of G G TP Wong, and contends that the Recorder should have made some H different finings. H I I 97. There is one particular argument raised by the Defendant in J Grounds 6B(d) and 7 that we should briefly deal with, namely, J TP Wong’s “admission” that “Lambeth might not necessarily follow his K K instructions” which, says the Defendant, supports its contention that the L Recorder was wrong to find that the Plaintiff was the sole author of the L relevant SF 2003 Plans42 and/or the Recorder should have found that M M Gammon/Lambeth had made authorial contributions to the making of the N SF 2003 Plans. In TP’s 1st WT, TP Wong said, inter alia, that (i) he N provided Jacky Wong with copies of all the Hand Drawn Plans and O O KT Plans, gave instructions and directions to Lambeth as to the drawing P up of the SF 2003 Plans, and the SF 2003 Plans were then drawn up P entirely on his instructions and directions (§46), (ii) in the entire process Q Q of drawing up the SF 2003 Plans, the role played by Lambeth was akin to R a mere “scribe” (§46(f)), and (iii) Lambeth was not engaged in the PFSF R portion of the PB Project in any official capacity and, as such, Lambeth’s S S team did not and could not have refused to follow the instructions given T T 42 The SF 2003 Plans were referred to in TP’s 1 WS as the “Construction Plans”. st U U V V  - 53 - A A by the Plaintiff. In the course of his cross-examination by Mr Liao at B B the trial, when it was pointed out to TP Wong that a small feature referred C to as a “second counterweight” which appeared in Hand Drawn Plan D C (relating to the barging conveyor) did not appear in the corresponding SF D D 167 (of the SF 2003 Plans), TP Wong said that he did not know why E Lambeth did not include that feature in SF 167, and that although he had E instructed Lambeth to do so, Lambeth did not necessarily follow his F F instruction. In addition to the argument under Ground 2(d) that this G inconsistency between TP Wong’s written and oral evidence adversely G affects his credibility, the Defendant argues that TP Wong’s admission H H shows that the Plaintiff was not the sole author of the SF 2003 Plans (at I least in relation to SF 167), and/or Gammon/Lambeth had made some I authorial contribution to the same. J J K 98. In our view, the fact that out of many SF 2003 Plans, there K was one single instance where Lambeth did not copy everything or L L include one particular feature of Hand Drawn Plan D in SF 167 is far M from sufficient for this Court to interfere with the Recorder’s assessment M of the overall credibility of TP Wong, or her finding of fact that TP Wong N N was the person who created the SF 2003 Plans and Lambeth was a mere O scribe. As correctly pointed out by the Recorder, when considering the O P issue of copyright infringement, the question is whether what has been P 43 taken constitutes all or a substantial part of the copyright work . Q Q Similarly, for the purpose of establishing authorship, the Plaintiff needs R only to show that it is the owner of the copyright in relation to the R relevant part of the work which the Plaintiff complains has been infringed S S by the Defendant. T T 43 See §116 of the Judgment. U U V V  - 54 - A A (d) Ground 7A B B 99. Under this ground, the Defendant argues that the Recorder C C was wrong in finding that the SF 2003 Plans (in particular, SF 106, 130, D 160 and 162) were first created on 24 July 2003, when in fact they were D first made on 16 June 2003 before the Plaintiff submitted its quotation to E E Win Hing for the TKO137 PFSF works, and in failing to find authorial F contributions from Gammon/Lambeth. This ground has no substance. F Insofar as SF 130, 160 and 162 are concerned, they do not form part of G G the complaints pursued by the Plaintiff at the trial44. Insofar as the H remaining plan, SF 106, is concerned, although the first issue of that plan H was dated 16 June 2003 (with 4 further revisions apparently made in July I I and August 2003), the Recorder made a specific finding as to how it and J SF 107 were created at §86(2) of the Judgment: J K “These are drawings showing the construction sequence K and details on how the sheetpile retaining wall at the decanting point was to be secured against the earth-filled L L ramp. Given (i) these details must necessarily follow from the design and dimensions of the support structure, M which were created by TP Wong and (ii) the matters in M §§84 to 85 above45, I find that they were created on the instructions of TP Wong.” N N O 100. We do not see that the actual date on which the first issue of O SF 106 was created has any material bearing to the Recorder’s finding P P that Jacky Wong/Lambeth created it on the instructions of TP Wong. Q Q R R S 44 S See §37 of the Judgment. 45 At §§84 and 85 of the Judgment, the Recorder explained why she accepted the T evidence of TP Wong and rejected the evidence of Jacky Wong in relation to the T creation of the SF 2003 Plans. U U V V  - 55 - A A (e) Ground 8 B B 101. Under this ground, the Defendant argues that the Recorder C C was wrong to disregard the authorial contributions from D Gammon/Lambeth, and wrongly found the Plaintiff as sole author and D owner of the SF 2003 Plans according to various authorities, in particular, E E Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR F 818, at 835; and Martin v Kogan [2020] ECDR 3, at §41. F G G 102. In our view, neither case assists the Defendant. The former H case, concerning some architects’ drawings or floor plans (artistic work), H establishes the principle that – I I “where two or more people collaborate in the creation of a J work and each contributes a significant part of the skill and J labour protected by the copyright, then they are joint authors”; K K L while the latter case, concerning a screenplay (literary or dramatic work), L establishes the principle that – M M “[i]t is the skill and effort involved in creating, selecting or N N gathering together the detailed concepts or emotions which the words have fixed in writing which is protected in the O case of a literary or dramatic work, whether the work is one O of sole or joint authorship. Too much focus on who pushed the pen is likely to detract attention from what it is P P that is protected, and thus from who the authors are. Likewise, we do not think that an enquiry into who accepts Q responsibility for the form of expression in the work is a Q helpful concept, particularly in a collaborative work. The statutory test does not go any further than asking who R contributed to the creation of the work”. R S S T T U U V V  - 56 - A A 103. We do not consider that these principles are relevant or B B applicable to the present case, in view of the following finding by the C Recorder at §85(8) of the Judgment: C D “I bear in mind that there being no dispute that Lambeth D generated the (digitized) SF 2003 Plans, the ultimate question I have to consider is whether Lambeth just E followed TP Wong’s directions and instructions, or that it E was at liberty to change things as it liked or saw fit. F However, there is simply no evidence from Jacky Wong F that there were aspects of the design or depiction communicated to him which he did not agree with and G ignored and replaced with his own design. As Mr Liao G submitted, Jacky Wong’s evidence was all-or-nothing – he said he created the (structural) design and his team H H executed it. As such, my rejection of his evidence means that there is no factual foundation to say that he or the I Lambeth team had a creative role in some aspect of the I SF 2003 Plans.” J J 104. In other words, there was simply no evidence accepted by K K the Recorder that Jacky Wong or Lambeth or Gammon made any L contribution in creating the SF 2003 Plan other than merely following L TP Wong’s directions and instructions. The Recorder also found that M M Lambeth’s role was no more than one of scribe46. On these findings, N there was no basis for holding Gammon or Lambeth to be co-authors or N co-owners of the copyright subsisting in the SF 2003 Plans. O O P 105. For the above reasons, Grounds 5 to 8 are all rejected. P Q Q GROUNDS 9 TO 10A: “WORK OF ARCHITECTURE” R R 106. The Defendant makes two principal points under these S grounds. The first point, under Grounds 9 and 10, raises an issue of S T 46 T See Mei Fields Designs Ltd v Saffron Cards and Gifts Ltd [2018] ECDR 26, at §§69, 76 & 77. U U V V  - 57 - A A statutory construction, namely, whether, for a building to qualify as a B B “work of architecture” within the definition of “artistic work” in s 5(b), C the building in question must satisfy some requirement of “artistic C quality”. The second point, under Ground 10A, raises a pleading D D objection that the Plaintiff should not have been permitted to run the case E that P’s Installation constituted a “work of architecture” within the E definition of “artistic work” in s 5(b). F F G 107. Dealing first with the issue of statutory construction, in order G to qualify for copyright protection, the Plaintiff had to show that P’s H H Installation was an “artistic work” as that expression is defined in s 5, as I follows: I J “artistic work (藝術作品) means – J (a) a graphic work, photograph, sculpture or collage, K irrespective of artistic quality; K L (b) a work of architecture being a building or a model L for a building; or M (c) a work of artistic craftsmanship.” M N N 108. As pointed out by the Recorder at §96 of the Judgment, the O only candidate in the definition of artistic work that P’s Installation could O fall within would be sub-paragraph (b): “a work of architecture being a P P building or a model for a building”. Q Q 109. At the trial, Mr Liao argued that P’s Installation could not R R fall within that part of the definition for 2 reasons: (i) it was only a S temporary structure, and thus would not qualify as a “building” (which is S defined to include “any fixed structure, and a part of a building of fixed T T structure”), and (ii) the expression “work of architecture”, on its true U U V V  - 58 - A A construction, imported a requirement of “artistic quality”, which P’s B B Installation did not possess. The Recorder held against Mr Liao on both C grounds. In the present appeal, Mr Liao no longer contends that P’s C Installation is not a “building” within the meaning of that term as defined D D in the Ordinance, but maintains the argument that it does not qualify as a E work of architecture. In support of this argument, Mr Liao relies on the E following commentary in Copinger and Skone James on Copyright, F F 19th ed, at §2-152: G G “History of protection of works of architecture H Works of architecture, as distinct from the plans, drawings H and sketches of such works, were first made the subject of copyright protection under the 1911 Act… Under the 1911 I I Act, an artistic work was therefore defined to include ‘architectural works of art’, this expression being in turn J defined to mean any building or structure having an artistic J character or design, in respect of such design, or any model for such building or structure, but the protection given by K K the Act was confined to the artistic character and design, and did not extend to processes or methods of construction. L Copyright could therefore now subsist in a building, as L distinct from a copyright in the plans on which the building was based. Under the 1956 Act, an artistic work was M defined to include works of architecture, being either M building or models for buildings, a building being defined N to include any structure. Express reference to artistic N character or design, and to the nature of protection, was now omitted but it is thought that this did not produce any O substantial alteration in the law. While drawings were O protected ‘irrespective of artistic quality’, the omission of these words in respect of architectural works maintained, in P P effect, the requirement under the 1911 Act that such works, in order to be architectural works, must have some artistic Q character.” [emphasis added] Q R R 110. The learned editors of Copinger go on to state, at §2-156, the S following: S “Artistic character or design of architectural work T T U U V V  - 59 - A A The necessity under the 1911 and 1956 Acts that a work of B architecture should have an artistic character or design has B already been noted and it is suggested that the position is the same under the 1988 Act. It is suggested that such C artistic character need not involve any aesthetic judgment, C but may reside in the process of design of the building or D structure. In the case of the vast majority of structures in D respect of which the issue might arise as to whether they were works of architecture, this is, in practice, likely not to E be a problem. It is, however, possible to conceive of a E structure which would require to be designed but which might not be considered to qualify as a work of F F architecture.” G G 111. According to counsel’s research, the view that to constitute H architectural works under the 1956/1988 Acts, such works must have H some “artistic character or design” has appeared in successive editions of I I th th Copinger, from the 13 edition (1991) through to the 19 edition (2024) J of that work. Mr Liao submits that the Recorder was wrong to hold that J the said statement “wholly ignored the legislative history of the UK K K Copyright Act”. He also relies on various authorities, including Beazley L Homes Ltd v Arrowsmith [1978] 1 NZLR 394, at 400, Lucasfilm Ltd v L Ainsworth [2012] 1 AC 208, at §14-26, which it is said are supportive or M M consistent with Copinger, as well as the observation of Hacon J in N N Response Clothing Ltd v Edinburgh Woollen Mill Ltd [2020] ECDR11, at O §44. O P P 112. For the purpose of ascertaining the true construction of the Q expression “work of architecture” in s 5(b), it is necessary to have regard Q to the legislative history of the definition of “artistic work” in the R R successive Copyright Acts in the UK since 1911: S (1) In the Copyright Act 1911 – S T T U U V V  - 60 - A A (a) the expression “Artistic work” was defined in s 35(1) B B to include “works of painting, drawing, sculpture and C artistic craftsmanship, and architectural works of art C and engravings and photographs”, and D D (b) the expression “Architectural work of art” was defined E to mean “any building or structure having an artistic E F character or design, in respect of such character or F design, or any model for such building or structure, G G provided that the protection afforded by this Act shall H be confined to the artistic character and design, and H shall not extend to processes or methods of I I construction”. J (2) It is clear that, under the 1911 Act, although an architectural J work of art could enjoy copyright protection, such protection K K was given only if the relevant work possessed or exhibited L some artistic character or design, and the protection extended L only to the artistic character and design of the work. M M (3) In the Copyright Act 1956, the definition of “artistic work” N N in s 3(1) was changed, and broken down into 3 O sub-paragraphs, as follows – O P “In this Act ‘artistic work’ means a work of any of P the following descriptions, that is to say, - Q (a) the following, irrespective of artistic quality, Q namely paintings, sculptures, drawings, R engravings and photographs; R (b) works of architecture, being either buildings S or models for buildings; S (c) works of artistic craftsmanship, not falling T within either of the preceding paragraphs.” T U U V V  - 61 - A A (4) Two points are of note upon a comparison of the 2 B B definitions in the 1911 and 1956 Acts – C (a) although works of painting, drawing and sculpture C enjoyed copyright protection under both Acts, the D D 1911 Act was silent as to whether the relevant work E E must satisfy some requirement of artistic quality in F order to qualify for copyright protection, while the F 1956 Act expressly provided that protection was given G G irrespective of artistic quality; and H (b) insofar as works of architecture were concerned, in H order to attract copyright protection, a requirement of I I artistic quality was expressly imported under the J 1911 Act, but such requirement no longer appeared in J the 1956 Act. K K (5) Notwithstanding the aforesaid differences, it is incorrect to L L think that, for works of painting, drawing and sculpture, M there was a requirement of artistic quality imposed under the M 1911 Act. As observed by Lord Reid in George Hensher N N Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64, at O 77G – O P “Section 3(1) [of the 1956 Act] is difficult to P understand unless one takes account of its origin. The Copyright Act 1911 covered artistic works. Q Q Section 35 contains a definition. ‘“Artistic work” includes works of painting, drawing, sculpture and R artistic craftsmanship, and architectural works of art R and engravings and photographs.’ ‘Architectural work of art’ is defined as meaning any building or S structure having an artistic character or design. This S brought in artistic craftsmanship and buildings for T the first time. It would seem that paintings, T drawings, sculpture, engravings and photographs U U V V  - 62 - A A were protected whether they had any artistic B character or not, but works of craftsmanship had to B be of ‘artistic’ craftsmanship and buildings must have an ‘artistic’ character or design. There is no C further explanation of what is meant by ‘artistic.’ C The Act of 1956 in section 3(1)(a) makes explicit D D that the works to which it refers need have no artistic quality. Section 3(1)(b) removes the need E for any artistic character or design in buildings. But E section 3(1)(c) preserves the limitation that there must be ‘artistic’ craftsmanship.” [emphasis added] F F G (6) In other words, the addition of the words “irrespective of G artistic quality” in s 3(1)(a) of the 1956 Act did not effect H H any change of the law insofar as works of painting, drawing I and sculpture were concerned. Those words merely made I explicit what was implicit in the definition in the 1911 Act. J J On the other hand, the law was changed insofar as works of K architecture were concerned. Under the 1911 Act, the K relevant work must have an artistic character or design L L before copyright protection was given. However, under the M 1956 Act, the need for any artistic character or design was M removed. In our view, what is significant is not the N N addition of the words “irrespective of artistic quality” for O paintings, sculptures, drawings, etc in s 3(1)(a), but the O omission of the express reference to “artistic character or P P design” for works of architecture in s 3(1)(b) of the 1956 Act. Q While Lord Reid’s aforesaid observations in Hensher were Q R strictly obiter, the underlying reasoning was, in our view, R clear and convincing, and we have no hesitation in agreeing S S with Lord Reid’s observations. T T U U V V  - 63 - A A (7) The definition of “artistic work” in the 1956 Act was carried B B over to s 4(1) of the Copyright, Designs and Patents Act C 1988 (with minor textual and stylistic changes which did not C result in any change of substance), as follows – D D “In this Part ‘artistic work’ means – E E (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality, F F (b) a work of architecture being a building or a model for a building, or G G (c) a work of artistic craftsmanship.” H H (8) Finally, the definition of “artistic work” in s 5 of the I I Copyright Ordinance in Hong Kong is derived from, and J identical to, the definition of that expression in the 1988 Act, J save that a Chinese translation of “artistic work” (藝術作品) K K has been added in the local definition. L L M 113. In our view, it is clear, from an examination of the legislative M history of the definition of “artistic work” in the successive Copyright N N Acts in the UK since 1911 and the Copyright Ordinance in Hong Kong O that there is no requirement of artistic quality to be satisfied before a O work of architecture can qualify as an artistic work under s 5(b). The P P Recorder is correct in her view expressed at §100(7) of the Judgment that: Q Q “it would be wrong to simply construe item (b) against item (a), and say that because item (a) stipulates ‘irrespective of R artistic quality’ and such words are absent in item (b), it R must follow that item (b) requires artistic quality. On the S contrary, the legislative history of item (b) shows that the S words used mean exactly what they say; that is, there is no requirement for artistic quality in a work of architecture.” T T U U V V  - 64 - A A 114. As regards Beazley Homes Ltd and Lucasfilm relied on by B B Mr Liao, those cases were considered by the Recorder at §§101 and 102 C of the Judgment. In the former case, McMullin J expressed the view (at C p 400) that a “work of architecture” within the definition of “Artistic D D work” in s 5(1) of the Copyright Act 1962 of New Zealand, which was in E the same terms as s 3(1) of the Copyright Act 1956 in the UK, meant a E work in the design of which some skill was apparent, and thus for a F F building to qualify as a work of architecture, it must be the product of G some skill or experience in design or construction. There is nothing in G the judgment of McMullin J to suggest that a work of architecture must H H have some artistic quality. The latter case was concerned with the I meaning of the word “sculpture” in the definition of artistic work in s 4 of I the Copyright, Designs and Patents Act 1988. In our view, neither case J J supports the Defendant’s construction of the expression “work of K architecture” in s 5(b). K L L 115. Lastly, Response Clothing relied on by Mr Liao was M concerned with the question of whether a design which was woven into M the fabric of garments qualified as a “work of artistic craftsmanship”. N N Mr Liao seeks to place reliance on the following passage by HH Judge O Hacon, at §44: O P “Before turning to what makes a work of craftsmanship P artistic, it is to be noted that whereas s.4 of the 1988 Act Q makes artistic quality irrelevant to the assessment of Q whether a graphic work, photograph, sculpture or collage is an artistic work, there is no such removal of artistic merit R from the assessment of a work of architecture or artistic R craftsmanship. It might be said that in consequence artistic merit is relevant to the latter assessments. But, on one view S S anyway, artistic merit or quality can only ever be a subjective consideration. Parliament cannot have intended T the assessment to depend on the chance of a particular T court’s artistic appreciation, or lack of it. The only U U V V  - 65 - A A alternative would be to have experts explain their own B (presumably opposing) views. Yet even received views on B artistic merit can change markedly over time and sometimes they change back again.” C C D 116. It seems to us clear that HH Judge Hacon was not intending D to express any definitive conclusion when he stated that “it might be said E E that in consequence” artistic merit was relevant to the assessment of F whether a work was a work of architecture or artistic craftsmanship. We F do not see that this statement takes the Defendant’s case on the G G construction of “work of architecture” any further than the view H expressed in Copinger. H I I 117. In all, we are of the view that the Recorder came to the J correct conclusion that there is no requirement that a work must have J some artistic quality or character before it can qualify as a “work of K K architecture” for the purpose of s 5. L L 118. The Defendant’s pleading objection raised under M M Ground 10A can be dealt with more briefly. The Defendant argues that N the Recorder was wrong “as to how the issue of P’s Installation arose N from the Plaintiff’s Amended Statement of Claim in which P’s Installation O O was simply pleaded as an original artistic work (without particulars) P corresponding to the SF 2003 Construction Plans [Judgment, §42]”. P There is nothing in this objection. In the Amended Statement of Claim, Q Q the Plaintiff pleaded, inter alia, that: R R “[7A] The PFSF apparatus assembled by the Plaintiff for the first and second sorting lines at the TKO137 S (‘the Plaintiff’s Installation’), which corresponds to S the Construction Plans, was assembled with T substantial intellectual and human labour and effort. T U U V V  - 66 - A A [8] The Construction Plans and the Plaintiff’s B Installation are original artistic works within the B meaning of section 5 of the Copyright Ordinance (Cap. 528) …” C C D 119. The Plaintiff thus made it clear that it was advancing a case D that P’s Installation was an original artistic work within the meaning of E E s 5. The definition of artistic work in s 5 has only 3 short F sub-paragraphs, and “a work of architecture” was the obvious candidate. F If the Defendant was in any genuine doubt on this matter, it could easily G G have asked the Plaintiff to state the basis on which the Plaintiff contended H that P’s Installation was an original artistic work within the meaning of H s 5 by seeking further and better particulars of the plea. The issue of I I whether, to quality as a work of architecture, some element of artistic J quality was required, was a pure question of law. The Defendant was J not inhibited in any way from advancing its arguments on this issue at the K K trial. We do not see that the Defendant has suffered any prejudice L arising from the fact that it was not pleaded in the Amended Statement of L Claim that P’s Installation was a work of architecture within the M M definition of artistic work in s 5. In short, the Defendant’s pleading N objection is rejected. N O O GROUNDS 11 TO 21: INFRINGEMENT OF THE PLAINTIFF’S P COPYRIGHT IN THE SF 2003 PLANS AND P’S INSTALLATION P (a) Ground 11 Q Q 120. Under this ground, the Defendant argues that the Recorder R R erred in finding that the Defendant had infringed the Plaintiff’s copyright S in the SF 2003 Plans and P’s Installation by comparing the SF 2005 Plans S with the SF 2003 Plans purportedly upon the Defendant’s “concession” T T that the MS Plans basically followed the SF 2005 Plans so that U U V V  - 67 - A A infringement would be established if the SF 2005 Plans were a substantial B B reproduction of the SF 2003 Plans (Judgment, §§40(1), 43(4) and 119). C The Defendant says that (i) it made no such concession which is C erroneous in law, and (ii) on the issue of infringement, the question is D D whether the MS Plans and the Defendant’s PFSF for the HZMB Project E infringed the Plaintiff’s copyright in the SF 2003 Plans and P’s E Installation. F F G 121. At §40(1) of the Judgment, the Recorder stated that “[t]he G Defendant accepts the MS Plans basically followed the SF 2005 Plans, so H H that if the SF 2005 Plans were a substantial reproduction of the SF 2003 I Plans, infringement would be established”. The Defendant’s contention I that it made no such concession is incorrect. In the course of Mr Liao’s J J oral closing submissions at the trial, the following exchanges took place K between the bench and the bar table47: K L “COURT: Because I think one of the submissions that L Mr Chain makes… M MR LIAO: Yes. M N COURT: … is that, well, even in a scenario where N there are some – where the 2005 plan in and of itself attracts originality, the 2003 plan O can still almost like sort of permeate through O it, and that copyright continues to remain so that when I look at the MS plan, I have to P P look at it both by comparison to the 2005 plan and the 2003 plan. What do you say Q to that? Q MR LIAO: Yes, yes. Now, let’s say there are several R issues involved but let me firstly, firstly, for R the further construction plans [ie the SF S 2005 Plans], the question is whether it is a S substantial reproduction of the construction T T 47 See transcript at Bundle E2/Tab 254/1703S-1705T. U U V V  - 68 - A A plan [ie the SF 2003 Plans]. Right? That B goes more to the question of infringement B because the MS plans basically follow the further construction plans. So if the further C construction plans constitute a reproduction C of substantial part of the construction plan, D so would MS plan, would be a substantial D reproduction of the construction plan via that conduit, via that type, right? E E It’s an indirect copy in the sense that if this is a copy of the – that’s for the construction F plan, therefore it’s also a copy of the F construction plan, very much like the point G my learned friend raised about colour, right? G So you say sub A, B and C. If B is a reflection of A, and C being the same as B, H therefore it must be a reproduction of A as H well and at the same time a reproduction of I B. Right? So that link is there. That’s I on the question of infringement, reproduction. J J But on the question of authorship … K COURT: … I think you’ve submitted to me that, K basically, the MS plan copies the 2005 L plans. L MR LIAO: Now, there are some exceptions. M M COURT: Some of them. All right, yes. N MR LIAO: Some, for example, some… N CIURT: So that’s going to be the exercise, and then I O O obviously have to then do that comparison again for substantial – to see if it’s P substantially reproduced there. P MR LIAO: Yes, yes, but your Ladyship’s work there Q will be very much reduced once you have Q done the further construction [plans].” [underlining added] R R S 122. It is clear from the above exchanges that Mr Liao on behalf S of the Defendant did accept, or concede, that the MS Plans basically T T followed the SF 2005 Plans, so that if the SF 2005 Plans were a U U V V  - 69 - A A substantial reproduction of the SF 2003 Plans, infringement would be B B established. Although Mr Liao also said that there were some C exceptions, they did not detract from the main point that the MS Plans C basically followed the SF 2005 Plans. D D E 123. The exceptions that Mr Liao relied upon were set out in E Table 3 (items 1, 2, 5, 6 and 7) attached to D’s Closing Submissions. F F Those exceptions are maintained by Mr Liao in the present appeal48. G They relate to SF 101, 102, 103, 104, 105, 110, 111 and 112, G corresponding to MS/001, 002, 003, 004, 005, 021, 022 and 023 49 . H H However, the mere fact that there exist some differences between the I SF 2003/SF 2005 Plans and the relevant MS Plans do not mean that the I latter are not substantial reproductions of the former. As correctly J J observed by the Recorder at §115(3) of the Judgment, when considering K the issue of infringement, “[t]he inquiry is directed to the similarities K rather than the differences. Differences in the overall appearance of the L L 2 works due to presence of features of the defendant’s work about which M no complaint is made are not material.” At §118 of the Judgment, the M Recorder carefully analysed the SF 2003 Plans individually 50 and N N compared them with the corresponding SF 2005 Plans/MS Plans, and O concluded that substantial reproduction was established in each instance. O P Insofar far as SF 101, 102, 103, 104, 105, 110, 111 and 112 were P concerned, the comparison was with the corresponding SF 2005 Plans. Q Q There is, however, no suggestion by the Defendant that the features R R 48 See §53 and footnote no 12 of the Skeleton Arguments of the Appellant/Defendant dated 16 September 2025. S 49 S See the table at §110 of the Judgment. 50 Save and except SF 113, 146, 147 and 148 where the Defendant did not dispute T that the relevant MS Plans were a substantial reproduction of the corresponding T SF 2005 Plans/SF 2003 Plans (see §111(1) of the Judgment). U U V V  - 70 - A A appearing in the corresponding SF 2005 Plans which the Recorder found B B to be substantial reproductions of the relevant SF 2003 Plans do not also C appear in the corresponding MS Plans. C D D 124. In all, the Defendant’s complaints under Ground 11 have no E validity. E F F (b) Grounds 12 to 21 G G 125. Under these grounds, the Defendant challenges the H Recorder’s findings that various SF 2005 Plans/MS Plans were H substantial reproductions of the corresponding SF 2003 Plans and/or P’s I I Installation. At the hearing of the appeal, Mr Liao said that these were J relatively minor points, and confirmed that the Defendant would confine J its complaints to 4 plans or sets of plans, namely: K K (1) SF 101 v MS/001, the corresponding SF 2005 Plan being L SF 101 (Rev 8) (relating to layout) 51; L M (2) SF 102 (Rev 5), SF 103 (Rev 5) and SF 104 (Rev 2) v M MS/002, the corresponding SF 2005 Plan being SF 109 N N (Rev 2) (relating to elevation) 52; O O (3) SF 110 (Rev 2) v MS/021, the corresponding SF 2005 Plans P being SF 115 (Rev P1) and SF 115 (Rev 1) (relating to P 53 support of VGF ) ; and Q Q R R S S 51 See Core Bundle B3/Tabs 72, 77 and 126. 52 T See Core Bundle B3/Tabs 82, 85, 87, 89 and 127. T 53 See Core Bundle B3/Tabs 92, 93, 128 and 129. U U V V  - 71 - A A (4) SF 112 (Rev 1) v MS/023, the corresponding SF 2005 Plans B B being SF 117 (Rev P1) and SF 117 (Rev 1) (relating to C footing for VGF)54. C D D 126. Mr Liao does not challenge the legal principles set out by the E Recorder in Section I.1 (§§113 to 116) of the Judgment concerning the E law on substantial reproduction. The following principles that the F F Recorder set out in the Judgment are relevant for the purpose of the G present discussion: G H “[113] An action for infringement of artistic copyright is H not concerned with the appearance of the defendant’s work but with its derivation… Even I I where the copying is exact the defendant may incorporate the copied features into a larger work J much and perhaps most of which is original or J derived from other sources. But while the copied features must be a substantial part of the copyright K K work, they need not form a substantial part of the defendant’s work – thus the overall appearance of L the defendant’s work may be very different from the L copyright work, but it does not follow that the defendant’s work does not infringe the plaintiff’s M copyright: Designers Guild Ltd v Russell Williams M (Textiles) Ltd [2000] 1 WLR 2416, 2425C-E. N N [114] The question of infringement involves a two-stage inquiry. O O [115] First, one must identify those features of the defendant’s design which the plaintiff alleges have P been copied from the copyright work. P (1) The concept of reproduction consists of 2 Q Q elements: (i) a sufficient resemblance between the copyright drawing and the R alleged infringement, and (ii) a causal R connection between the two. Neither element is sufficient. S S T T 54 See Core Bundle B3/Tabs 95, 96, 130 and 131. U U V V  - 72 - A A (2) One starts with a visual comparison of the 2 B designs, noting the similarities and the B differences, the purpose of which is to judge whether the particular similarities relied on C are sufficiently close, numerous or extensive C to be more likely to be the result of copying D than of coincidence. D (3) The inquiry is directed to the similarities E rather than the differences. Differences in E the overall appearance of the 2 works due to presence of features of the defendant’s work F about which no complaint is made are not F material. G G … H [116] Second, once it is found the defendant’s design H incorporates features taken from the copyright work, the question is whether what has been taken I I constitutes all or a substantial part of the copyright work: Cap.528 sections 22(3) and 23; Designers J Guild 2426A-B. J (1) Whether a part is substantial must be K decided by its quality rather its quantity: K Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, 293. L L (2) In the type of case where an identifiable part M of the whole, but not the whole, has been M copied, the question whether the copying of the part constitutes an infringement depends N on the qualitative importance of the part that N has been copied, assessed in relation to the O copyright work as a whole. Since O substantiality depends on the relationship between what has been copied on one hand P and the original work on the other, similarity P is no longer relevant: Designers Guild 2431H. Q Q (3) To that end:- R R (a) In the case of an artistic work, the question is whether the defendant S had taken a substantial part of ‘that S which is visually significant’: Rose Plastics GmbH v William Beckett & T T Co (Plastics) Ltd (unreported) 2 July U U V V  - 73 - A A 1987, cited with approval in B Interlego 266A-B. B … C C (d) Moreover, whether the actual dimensions and spatial relationships D D visually depicted on the drawing are sufficiently important to be a E substantial part depends upon their E significance to the kind of person to whom the drawing is addressed; in F other words, ‘visually significant’ is F not to be equated with significant to G the layman: Billhöfer 122. This G question is one of fact and degree: op.cit.” H H I 127. In the Judgment, the Recorder set out her detailed reasoning I for finding that the relevant SF 2005 Plans were substantial reproductions J J of the SF 2003 Plans referred to at §125(1) to (4) above (see items 1, 2, 3, K 4, 8 and 10 in the Table at §118 of the Judgment). We do not propose to K set out the Recorder’s reasoning here. At the hearing of the appeal, L L Mr Liao challenged the Recorder’s finding of substantial reproductions M by inviting the Court to carry out a visual comparison of the relevant M SF 2003 Plans with the corresponding SF 2005 Plans/MS Plans to N N identify the dissimilarities between them and conclude that the latter O could not be regarded as substantial reproductions of the former. O P P 128. Essentially, the approach that Mr Liao advocates is to look at Q the plans as a whole and place emphasis on the dissimilarities in the Q overall shape or configuration of the layout, elevation, VGF support R R structure or VGF footing appearing on the relevant SF 2003 Plans on the S one hand and the corresponding SF 2005 Plans/MS Plans on the other, S while the Recorder’s focus is on the particular similarities relied on by the T T Plaintiff and asks whether the similarities or features which have been U U V V  - 74 - A A copied (if established) constitute all or a substantial part of the copyright B B work. In our view, the Recorder’s approach is supported by the C principles that she set out and quoted at §126 above. C D D 129. When considering whether this Court should disturb the E Recorder’s finding on the issue of infringement, we bear in mind that her E conclusion was arrived at after what in modern legal parlance is often F F referred to as a “multi-factorial assessment”. Generally speaking, the G Court of Appeal should not reverse a trial judge’s decision on such an G issue unless he has misdirected himself or erred in principle. H H I 130. In Designers Guild Ltd v Russell Williams (Textiles) Ltd I [2000] 1 WLR 2416, which concerned infringement of copyright in an J J artistic work (fabric designs): K K (1) Lord Bingham of Cornhill set out the proper approach that L the appellate court should adopt when dealing with the issue L of whether there had been copying of a substantial part of the M M plaintiff’s design – N N “The Court of Appeal upheld [the defendant’s] challenge. But in doing so, as it seems to me, it fell O into error… Secondly, the Court of Appeal O approached the issue of substantiality more in the manner of a first instance court making original P findings of fact than as an appellate court reviewing P findings already made and in very important Q respects not challenged. It was not for the Court of Q Appeal to embark on the issue of substantiality afresh, unless the judge had misdirected himself, R which in my opinion he had not.” (2418G-H) R S S (2) Lord Hoffmann’s guidance on the appellate function in T relation to a judge’s finding of infringement is to the same T U U V V  - 75 - A A effect, pointing out that the appellate court should not B B reverse a judge’s decision unless he has erred in principle – C C “The question of substantiality is one of mixed law and fact in the sense that it requires the judge to D apply a legal standard to the facts as found. It is, as I D said, one of impression in that it requires the overall evaluation of the significance of what may be a E E number of copied features in the plaintiff’s design. I think, with respect, that the Court of Appeal F oversimplified the matter when they said that they F were in as good a position to decide the question as the judge. I say this for two reasons… G G Secondly, because the decision involves the H application of a not altogether precise legal standard H to a combination of features of varying importance, I think that this falls within the class of case in I which an appellate court should not reverse a I judge’s decision unless he has erred in principle: see Pro Sieben Media A.G. v. Carlton U.K. Television J J Ltd. [1999] 1 W.L.R. 605, 612–613. I agree with Buxton L.J. in Norowzian v. Arks Ltd. (No. 2) [2000] K F.S.R. 363, 370 when he said: K ‘where it is not suggested that the judge has L made any error of principle a party should L not come to the Court of Appeal simply in M the hope that the impression formed by the M judges in this court, or at least by two of them, will be different from that of the trial N judge.’” (2423F-2424B) N O O 131. In Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd P [2015] 1 HKLRD 414, which concerned infringement of trade marks in P coffee and tea products, Lam VP (as he then was), giving the judgment of Q Q the Court of Appeal, also referred to a collection of authorities explaining R the proper role of the appellate court in relation to a judge’s conclusion on R an issue of mixed question of law and fact, or one based on a S S multi-factorial assessment: T T U U V V  - 76 - A A “[22] In Fine & Country Ltd v Okotoks Ltd [2014] FSR B 11 at [50], Lewison LJ identified the role of an B appellate court in an appeal of a similar nature as ours as follows: C C ‘The Court of Appeal is not here to retry the case. Our function is to review the judgment D D and order of the trial judge to see if it is wrong. If the judge has applied the wrong E legal test, then it is our duty to say so. But in E many cases the appellant’s complaint is not that the judge has misdirected himself in law, F but that he has incorrectly applied the right F test. In the case of many of the grounds of G appeal this is the position here. Many of the G points which the judge was called upon to decide were essentially value judgments, or H what in the current jargon are called H multi-factorial assessments. An appeal court I must be especially cautious about interfering I with a trial judge’s decisions of this kind. …’ J [23] Another statement to similar effect can be found in J similar context in the judgment of Kitchen LJ in Specsavers v Asda [2012] FSR 19 at [104]: K K ‘… this court will not interfere with the L conclusion of a trial judge on an issue which L has required him to engage in what has been described as a multi-factorial assessment M unless there has been an error of principle …’ M [24] In the context of a mixed question of law and fact, a N N similar approach was adopted by Kwan JA in Toeca National Resources BV v Baron Capital Limited O (unrep., CACV 55 of 2013, [2014] HKEC 950) O (6 June 2014) at [42]-[44] where Her Ladyship found guidance from the judgment of Neuberger J P in Todd v Adams [2002] CLC 1050 at 1064-1065. P … Q Q [26] Another instance where similar sentiment was R expressed at an appellate level in an intellectual R property cases is the observation of Buxton LJ in Norowzian v Arks Ltd (No 2) [2000] FSR 363 at S p.370: S ‘Where it is not suggested that the judge has T T made an error of principle, a party should U U V V  - 77 - A A not come to the Court of Appeal simply in B the hope that the impression formed by the B judges in this court, or at least by two of them, will be different from that of the trial C judge.’” C D D 132. In coming to her finding that the relevant SF 2005 Plans/MS E Plans were substantial reproductions of the corresponding SF 2003 Plans, E the Recorder did not err in principle or misdirect herself. It is F F immaterial that we may have come to a different conclusion on the issue G of infringement if we are asked to determine this issue afresh. We do G not consider that there is any proper or sufficient basis for this Court to H H disturb the Recorder’s conclusion on the issue of infringement in the I present case. I J J 133. There is one other point mentioned by Mr Liao in his K submissions that we should briefly deal with. In relation to the K Recorder’s finding that SF 101 (Rev 7-8) (of the SF 2005 Plans) was a L L substantial reproduction of SF 101 (of the SF 2003 Plans) based upon a M comparison of the third sorting line on the former (SF 101 (Rev 7-8)) M with the first sorting line on the latter (SF 101), Mr Liao argues that such N N finding was contrary to the evidence of TP Wong, who accepted in O cross-examination that the alignment of the two sorting lines did not look O the same. The Recorder’s reasoning for finding substantial reproduction P P established is set out in item 1 of the Table at §118 of the Judgment: Q Q “(1) The relevant comparison is between the third sorting line on SF101 rev.7-8 and the first sorting R R line (with conveyor belts C11 to C13 and C31 to C32). S S (2) I am satisfied that the third sorting line copied the first sorting line (both in the SF 2003 Plan and P’s T Installation). The ordering and graphic depiction T of each component of the sorting line is identical or U U V V  - 78 - A A near identical. The alignment of the third sorting B line is substantially the same as the first sorting line, B with the exception of conveyor C44 which is at angle of around 120o (as opposed to horizontal in C the first sorting line), but that must have been C dictated by the site constraints since there was not D enough space for C44 to be fully horizontal. Further, D the description of the equipment (‘identical to existing [equipment]’) also indicates copying. E E (3) The copying is basically all of the copyrighted first sorting line. I find substantial reproduction F established.” F G G 134. It is clear from sub-paragraph (2) above that the Recorder H was well aware of the fact that the alignment of the two sorting lines was H different (in that conveyor C44 of the third sorting line on SF 101 I I (Rev 7-8) was at an angle of around 120° as opposed to horizontal in the J first sorting line on SF 101), but found nevertheless that substantial J reproduction was established. The issue of whether there was K K substantial reproduction was a matter for the Recorder, not the witness. L It is, we consider, open to the Recorder to come to her finding L notwithstanding the evidence of TP Wong. M M N 135. There are some other minor points raised by the Defendant N in the Supplemental Notice of Appeal under Grounds 12 to 21 which O O were not pressed by Mr Liao at the hearing of the appeal. We have P considered those points, but do not consider that they add anything of P significance to the Defendant’s appeal or have merit. Q Q R 136. In all, Grounds 11 to 21 are rejected. R S S T T U U V V  - 79 - A A DISPOSITION B B 137. The Defendant’s appeal is dismissed with costs to the C C Plaintiff, to be taxed if not agreed. D D E E F F (Aarif Barma) (Anderson Chow) (Mimmie Chan) Justice of Appeal Justice of Appeal Judge of the Court of G G First Instance H H Mr Christopher Chain SC leading Ms Stephanie Wong and Mr Martin I Lau, instructed by Y.S. Lau & Partners, for the Plaintiff I J Mr Andrew Liao SC leading Mr Leung Sze Lum, instructed by J Wellington Legal LLP, for the Defendant K K L L M M N N O O P P Q Q R R S S T T U U V V