THE QUEEN v. WONG KAM MING

Headnote

False Trade Marks. Prevalent offence but fines must not be so high that the defendant has no prospect of paying them and will inevitably have to go to jail in default. Especially so if defendant is under 21 years at age.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 95 OF 1990

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JUDGMENT

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Penlington, J.A.:

1. These are appeals against sentences passed in the South Kowloon Magistrate's Court on the 19th December, 1989.

2. The Appellant faced 10 charges of possession of goods to which a false trade mark had been supplied, these being watches bearing false trade marks of famous French and Swiss watch brands. The Appellant was engaged at the time of his arrest in trying to sell these watches to Japanese tourists. There is no finding of fact as to whether these sales were on the basis that the watches were genuine but I take the view, as no doubt did the trial Magistrate, most favourable to the Appellant that these watches were being sold as fakes and not as genuine articles, there being no evidence to the contrary. There was a further charge in relation to the possession of two handbags and a keyholder to which again a forged trade mark had been applied.

3. The total value of these goods was given in the agreed statement of facts as $59,000. There is no indication upon what basis that value was arrived but was nevertheless agreed.

4. The Appellant pleaded guilty to all charges for which he is entitled to credit although it would seem there was strong evidence against him.

5. The Appellant has previous convictions beginning from 1981 when he must have been very young indeed in that his age is now only 19. Three of these convictions are for theft for which he was firstly fined, then put on probation and finally sent to a reform school. The last of these convictions was in 1982 when he must nave been 13 years of age. He has one more recent conviction but it is for a totally different type of offence. He is married and has one child.

6. As the Appellant was 18 years of age at the time of the commission of these offences Section 109A of the Criminal Procedure Ordinance applies to him. That section reads as follows:

"109A. (1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with such person is appropriate the court shall obtain and consider information about the circumstances and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

 

7. The trial Magistrate imposed sentences by way of fines totalling $103,000 and ordered that in default of immediate payment the Appellant should go to prison for various periods in relation to each of the offences but totalling 12 months. In his reasons for imposing those sentences the Magistrate said that he did not believe that the Appellant would in fact be axle to pay these fines and that he assumed he would serve the 12 months' imprisonment. He said that he had however given him the option of paying the fines if he could do so because it was his normal practice in cases such as this. He took the view that as the offences were prevalent a deterrent sentence was required. He did not call for probation, detention centre or training centre reports.

8. Mr. Frankin, who appears here for the Appellant, referred me to various decisions and I am satisfied that in principle the attitude adopted by the Magistrate cannot be correct. Indeed in the United Kingdom, under Section 31 of the Criminal Courts Act 1973, a court may not impose a sentence of imprisonment. in default of payment of a fine unless it appears to the court that he has sufficient means to pay the sum forthwith. That certainly does not seem to be the case here. It is also clear that a fine must be tailored to the ability of the particular accused to pay it. Mr. Franklin relies on R. v. Stevens for that authority an unreported decision out referred to in Thomas, Principles of Sentencing, 2nd Edition, at 320. There is however also Hong Kong authority for that in Chan Sam v. R., 1968,H.K.L.R., 401 which in turn cites R. v. Churchill and others (No. 2), 1966, 2 A.E.R. , 215.

9. The trial Magistrate was rightly disturbed by the prevalence of offence of this sort and there was no doubt that the Appellant, young though he is, was involved in quite a big way in selling fake watches to tourists at, no doubt, a substantial profit. As he says in his own grounds of appeal he supports his family by selling fake watches, which are least has the merit of being frank. However the correct way of approaching the question of sentence was first of all to decide whether or not there was any form of punishment which would meet the facts of this case other than one of imprisonment. Here however it seems that the Magistrate did consider that very substantial fines would be adequate and it was therefore wrong in principle to make the fines so high that the Appellant could not possibly pay them.

10. The Magistrate did also consider the question of all suspended jail sentence but declined to impose such a sentence because he considered that the offences were "neither isolated nor uncharacteristic". I assume from that he was referring to the numerous charges and the Appellant's previous convictions for dishonesty, although not offences of this particular sort.

11. I entirely agree with the trial Magistrate that this type of offence presents a problem and those engaged in it must be adequately deterred. However if this young man did not find over $100,000 immediately he would go to jail for a year, which in fact was the Magistrate's intention. In the light of his personal circumstances, his age and the requirements of Section 109A of the Criminal Procedure ordinance that can't be right. The instances where such a sentence is appropriate for a person under 21 in respect of a non-violent offence must be rare and I am satisfied this is not one of them.

12. I did consider ask for a detention centre report as it seemed to me that a "short sharp shock" may be exactly what this young man needs but. in view of the time which has now elapsed, it seemed to me that I should see if there was a reasonable alternative. I considered that as the offences were all committed at the same time and place and that his previous record relates to offences when he was very young indeed, a suspended sentence was not inappropriate which, coupled with reduced but still substantial fines and the loss of all his goods, should act as a deterrent. If he does offend again, clearly he will have to be detained, but again I did not think for a period of 12 months in relation to these offences. I therefore allow the appeal and substitute a sentence of three months' imprisonment for each offence, all to be concurrent. The sentences will be suspended for a period of two years. The Appellant will also pay fines of $500 in relation to Charges A, B, F,G, I and K, of $1,000 in relation to Charges C and D, and $2,000 in respect of Charges H, E and J. This is a total of $11,000 which will be payable within one month. Failure to effect payment. within that period would be a breach of the suspended jail sentence conditions.