HKSAR v. LAU WING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 934/97

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J U D G M E N T

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1. The Appellant appeals against sentences imposed on him in respect of convictions under the Trade Descriptions Ordinance, Cap. 362. They are:

2. Possession for the purpose of trade goods to which forged trade marks are applied contrary to S.9(2). This involved a total of 17,375 watch dials.

3. Possession for the purpose of trade goods to which a false trade description was applied contrary to S.7(1). This involved a total of 580 watch cases.

4. Possession of Machine or Instrument for the Purpose of Forging a Trade-mark contrary to S.9(1)(d). The instruments were 2 metal moulds for forging the "Guess" trademark.

5. Possession of Machine or Instrument for the purpose of applying to goods a false trade description contrary to S.7(3)

6. The instruments were 2 metal moulds for the "Giorgio Armani" and 4 metal moulds for "Guess" trade descriptions.

7. Section 18(1) of the Trade Description Ordinance provides maximum penalties for summary convictions under S.7 and S.9 of a fine of $100,000.00 and 2 years imprisonment.

8. The appeal was argued on the ground that the sentence was too severe; that the Magistrate had wrongly concluded that a deterrent sentence was necessary and that there were no grounds for regarding these offences as any more prevalent now than they were when appeals such as Hoglory Company Ltd. MA 879/89 and Lau Wai-kin MA442/91 were decided.

9. It was also argued that the appellant's record had influenced the Magistrate's sentence, rather than being merely a matter for which he could not be given merit.

10. The court was urged to suspend the sentences as had been done with sentences imposed on another man arrested at the same time and place. Various cases and fact situations were addressed to the court to show that this sentence was out of line with past and more recent trends.

11. Mr. Massie for the Appellant, in essence, argued that persons convicted of such offences should have a graded sentencing scale from small fine, to larger fine, to suspended sentence, to immediate imprisonment.

12. In addition to Hoglory and Lau Wai-kin Mr. Massie referred the Court to R. v. Tele Art Ltd. Mag. App. 1121/86 and R. v. Wong Kam-ming MA95/96.

13. Mr. Tam for the Respondent commented on those cases and referred the Court also to Fung Ka-shing v. The Queen Cr. App. 1286/77; R. v. Ng Wie-Tsien MA257/87.

14. Although all those cases were on different facts it is possible to obtain assistance from them as to certain principles to be observed when sentencing for this type of offence.

15. None of these cases is authority for the proposition that an immediate custodial sentence cannot be imposed for such offences as these, whether with or without a fine.

16. Tele Art and the previous case of Eagles Eye to which it refers, are not really of assistance in the instant case, because the assessment of penalty as fines totalling 40% of the value of the goods related to the import or export of falsely marked goods, on the basis that damage would be caused to Hong Kong's trading reputation and relationships.

17. In his reasons for sentence the Magistrate considered immediate custodial sentences appropriate and imposed concurrent sentences of 4 months on each charge.

18. The Appellant was represented at trial and mitigation advanced. The Magistrate took into account the number of parts and moulds. He did not accept that they belonged to another person as had been put forward in mitigation.

19. He noted that such offences are prevalent and a deterrent sentence was warranted, considering in this context R. v. Wong Kam-ming MA 95/90.

20. Appellant had 6 previous convictions which the Magistrate considered did not entitle him to pity from the count (It is noteworthy that although Appellant did not have identical previous convictions, he had convictions for making forged document in 1970 and 1977; had received a suspended sentence (9 months suspended 2 years) in 1982 for 2 counts of Evasion of liability by deception and in 1992 had been given a further suspended sentence (12 months suspended 2 years) for Possession of a Forged Seal.)

21. Hoglory in discussing sentence refers to the range of penalties imposed in 33 cases heard between 1.1.89 and the date of that appeal, 25.8.89, i.e. 2 immediate custodial sentences, 6 suspended sentences and 25 fines. Unfortunately no details of the individual cases were given. The judge set aside a 6 month immediate custodial sentence on a first offender and substituted a sentence of 3 months suspended for 18 months. It can be seen that although fines were the norm, custodial sentences immediate, or suspended, were imposed in approximately one quarter of the cases.

22. Wong Kam-ming dealt with an offender under 21 years and made it clear that fines imposed must not be so high that a defendant has no prospect at all of paying them.

23. Mr. Massie suggested the Magistrate had wrongly interpreted Wong Kam-ming as being authority for a prison sentence being imposed. However, it was clear that the Magistrate only considered that case in respect of the comment that "this type of offence presents a problem and those engaged in it must be adequately deterred" (p. 6). In other words he looked at it as a pointer to deterrence being a factor in this type of sentence. It would have been obvious to the Magistrate that the facts of Wong Kam-ming were not relevant as it concerned a young offender.

24. Lau Wai-kin considered whether very heavy fines imposed by the Magistrate and which exceeded the then guidelines were justified. Penlington J.A. commented at p. 4 "These were fines imposed by a very experienced Magistrate who without any doubt has a considerable knowledge of the prevalence of this type of offence." The fines were upheld.

25. Fung Kai-shing a case under the Merchandise Marks Ordinance, the forerunner of the Trade Descriptions Ordinance, concerned 5 charges of Possessing for trade purposes goods to which forged or false trademarks had been applied, for which concurrent sentences of 15 months on each charge were passed. The goods were 4,000 radios and the trial was in the District Court. The Court of Appeal refused to interfere with the sentences saying that the "offence was a serious one and that in the past the courts have treated offences falling under this section of the law with too great a leniency".

26. That was the Court of Appeal's view in 1977 and there does not appear to have been any case since which took issue with that comment.

27. In 1987 in Ng Wan Ching the appellant was sentenced to one month imprisonment, on each of 6 charges of Possession for the purposes of Trade and Manufacture goods to which forged trade marks were applied and 4 months on each of 6 charges of Possession of Instruments for the Purpose of Forging Trade Marks.

28. The Appellant had applied the marks to bags intended for packing rice and detergent for local consumption. It is implicit that Appellant was a first offender. It was submitted that no custodial sentence should be imposed on a first offender. The learned judge rejected this contention and dismissed the appeal. He took into account that the operation would affect a large number of people and that the trade marks related to goods which are necessities of life in Hong Kong.

29. The judge made it clear he was not attempting to lay down a tariff but stated, "I do not think it is wrong in principle to impose immediate custodial sentences on a 1st offender where the offence is of a serious nature and where a deterrent sentence on a particular individual is desirable if the circumstances so warrant".

30. R. v. Wong Ping-chun an importation case referred to by this Respondent held that where parts only of finished goods are allegedly imported or exported with false trademarks or descriptions, the magistrate in imposing fines, should look at the whole of the damage that flowed from the unlawful act and that such fines should be based on the value of completed goods. Although evidence was not produced in the instant case as to the value of the completed watches it cannot have escaped the Magistrate that the value of the completed watches would exceed that given for the cases and dials as separate components.

31. From the cases therefore some general guidelines appear but they are subject always to the individual facts of a case: (1) There is no precept/practice against imposing a custodial sentence, even on a first offender, in a suitably serious case. (2) Deterrence is a consideration in view of the prevalence of these offences. (3) Heavy fines, whether alone or with a custodial sentence immediate or suspended, should not be such as to be impossible of payment. (4) The usual considerations relating to sentencing of young offenders prevail.

32. In gauging the gravity of an offence factors to be considered are the protection of the public; the importance of Hong Kong's trading relationships and the necessity for H.K.S.A.R. as a member of the international community to show it is taking a firm line to stamp out offences of this nature.

33. Finally, Mr. Massie contended that the Magistrate had, wrongly, ignored the fact that a man arrested in similar circumstances had been dealt with by a suspended sentence by a different Magistrate.

34. The Magistrate quite properly ignored that as potential mitigation for this Appellant. That other man was dealt with in a separate case, this Magistrate was not privy to his mitigation and any alleged "disparity" in sentence could not be prayed in aid in this appeal. The Respondent at the appeal hearing advised that the other man had a clear record, which was not Appellant's position. A further fact that would have been obvious to the Magistrate is that this Appellant had, in respect of his last 2 convictions been dealt with by a suspended sentence - hardly an indication they had been efficacious in improving his behaviour.

35. The Magistrate was fully addressed on sentence by Appellant's solicitor - he was aware of the prevalent nature of the offence and the scale of Appellant's wrongdoings as well as Appellant's personal circumstances. He carefully considered those matters and gave good reasons why a sentence of immediate imprisonment should be passed. I can see no reason to interfere with what is a proper sentence.

36. This appeal against sentence is dismissed.