Chan Nai-ming, 40, alias "Big Crook," was convicted by a Tuen Mun magistrate in October 2005 of three charges of attempting to distribute a copyrighted work.

He was alleged to have used BitTorrent, a popular Internet peer-to-peer, file-sharing program.

Chan's counsel Kevin Pun Kwok- hung argued that his client was not charged under the distribution of electronic data in Hong Kong.

He said the Copyright, Designs and Patents Act in England, which differentiates distribution rights in material copy and communication rights, such as broadcasting intellectual material, has yet to be adopted in Hong Kong.

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The section of the ordinance under which Chan was charged requires the distribution of a physical copy, argued Pun, a Hong Kong University professor who specializes in information technology law and intellectual property.

He said Chan only made available through the Internet an infringed copy of Hollywood films Daredevil, Miss Congeniality and Red Planet that were stored in his hard disk.

Court of Final Appeal Justice Robert Ribeiro asked Pun whether the electronic signals constituted electronic copies.

Pun replied that the downloaders made the decision to get the data from Chan's disk, not his client.

They had decided to get copies of the infringed copy in their computers.

Chief Justice Andrew Li Kwok- nang said either the upload or the download of electronic copies involves a computer hard disk, which is an act of distributing the copy in a tangible form.

BitTorrent allows downloads from multiple sources, each source supplying a part of the file - making it easier and quicker - to share large files such as films and software.

Chan was sentenced to three months' imprisonment.

He served 21 days in prison before he was granted bail in a decision by the Court of Appeal.

Senior assistant director of public prosecutions Richard Turnbull argued the pertinent section of the ordinance covers copies in digital form, and the Internet is clearly defined in the ordinance as one of the means of infringing copyrighted works.

Turnbull also said it is wrong for Chan to assume that if he had incurred a civil wrong, his act was, therefore, not criminal.

It can be both, said Turnbull.

The alternative charges of accessing a computer with criminal or dishonest intent can also apply to Chan if the judges find the original conviction inappropriate, Turnbull said.

But Pun said it is improper for the prosecution to bring in an alternative charge at a later period.

He urged the Court of Final Appeal to ignore it.

Chief Justice Li, permanent judges Roberto Ribeiro, Patrick Chan Siu-oi and Kemal Bokhary and non- permanent judge Lord Millett decided to reserve judgment after a three-hour hearing.

Chan's bail was extended pending judgment.