HKSAR v. YIP CHI TUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 11
(Application for Review)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. This is an application by the Secretary for Justice for the review of sentences imposed by H.H. Judge Hawkes on 3rd November 1997 in the District Court. The Respondent pleaded guilty to three charges of possession for sale of goods to which a forged trade mark was applied, contrary to section 9(2) of the Trade Descriptions Ordinance, Cap. 362; three charges of possession for sale of goods to which a false trade description was applied, contrary to section 7(1)(b) of the same Ordinance and one charge of possession for the purpose of sale of goods to which a mark so nearly resembling a trade mark as to be calculated to deceive was falsely applied, contrary to section 9(2) of the Ordinance.

2. The judge imposed a fine of $10,000 in respect of each of the offences and the Secretary for Justice, who obtained leave from the Chief Judge on 25th November 1997 submits that the sentences were wrong in principle and/or manifestly inadequate.

3. The agreed facts were relatively straightforward.

4. Customs and Excise Officers kept certain premises being flats on the 4th and 9th floors of the building known as Goldway Industrial Centre at Kwai Chung under surveillance on 23rd December 1996.

5. They saw the Respondent coming out of the flat on the 4th floor and intercepted him. He was carrying a carton. It was found to contain:

"30	keyholders to each of which the trade mark 'HUNTING WORLD' was applied (P4)
10	wallets to each of which the trade mark 'HUNTING WORLD' was applied (P5)
76	wallets to each of which the trade mark 'dunhill' was applied (P6)
52	wallets to each of which the trade mark for 'CHANEL' was applied (P7)
45	wallets to each of which the trade mark of 'Louis Vuitton SA' was applied (P8)
10	wallets to each of which the trade mark for 'Cartier' was applied (P9)
	(P4 - P9 were the subject matters of Charge 1)
10	keyholders to each of which the trade mark for 'Cartier' was applied (P10) (the subject matters of Charge 2)"

6. The officers suspected that these were counterfeit goods. They accordingly took the keys which were in the Respondent's possession and gained assess to both the flats.

7. In the flat on the 4th floor they found the following goods:

"68	watches to each of which the trade mark 'HERMES' was applied (P11)
107	scarves to each of which the trade mark 'HERMES' was applied (P12)
67	watches to each of which the trade mark 'BVLGARI' was applied (P13)
100	watches to each of which the trade mark 'dunhill' was applied (P14)
930	wallets to each of which the trade mark 'dunhill' was applied (P15)
200	coin bags to each of which the trade mark 'dunhill' was applied (P16)
347	keyholders to each of which the trade mark 'dunhill' was applied (P17)
40	belts to each of which the trade mark 'dunhill' was applied (P 18)
50	watches to each of which the trade mark 'CHANEL' was applied (P19)
180	scarves to each of which the trade mark 'CHANEL' was applied (P20)
1959	wallets to each of which the trade mark 'HUNTING WORLD' was applied (P21)
640	keyholders to each of which the trade mark 'HUNTING WORLD was applied (P22)
170	watches to each of which the trade mark 'ROLEX' was applied (P23)
168	watches to each of which the trade mark 'TAG HEUER' was applied (P24)
9	watches to each of which the trade mark 'CORUM' was applied (P25)
652	wallets to each of which the trade mark of 'Louis Vuitton SA' was applied (P26)
36	keyholders to each of which the trade mark of 'Louis Vuitton SA' was applied (P27)
1139	wallets to each of which the trade mark of 'Louis Vuitton SA' was applied (P28)
139	keyholders to each of which the trade mark of 'Louis Vuitton SA' was applied (P29)
217	coin bags to each of which the trade mark of 'Louis Vuitton SA' was applied (P30)
3	handbags to each of which the trade mark of 'Louis Vuitton SA' was applied (P31)
2	shoulder bags to each of which the trade mark of 'Louis Vuitton SA' was applied (P32)
1263	wallets to each of which the trade mark of 'CHANEL' was applied (P33)
305	keyholders to each of which the trade mark of 'CHANEL' was applied (P34)
23	belts to each of which the trade mark of 'CHANEL' was applied (P35)
27	pairs of sunglasses to each of which the trade mark of 'CHANEL' was applied (P36)
25	wallets to each of which the trade mark of 'CARTIER International SA' was applied (P37)
26	belts to each of which the trade mark of 'CARTIER International SA' was applied (P38)
	(P11 to P38 were the subject matters of Charge 3)
70	watches to each of which the trade mark 'HUNTING WORLD' was applied (P39)
270	keyholders to each of which the trade mark of 'CARTIER International BV' was applied (P40)
	(P39 - 40 were the subject matters of Charge 4)"

8. In the flat on the 9th floor they found:

"30	watches to each of which a trade mark TIFFANY & CO, so nearly resembling the trade mark 'TIFFANY' as to be calculated to deceive was applied (P41) (the subject matter of Charge 5)
100	rucksacks to each of which the trade mark 'PRADA' was applied (P42)
453	handbags to each of which the trade mark 'HUNTING WORLD' was applied (P43)
60	travelling bags to each of which the trade mark 'HUNTING WORLD' was applied (P44)
40	handbags to each of which the trade mark 'dunhill' was applied (P45)
141	handbags to each of which the trade mark of 'Louis Vuitton SA' was applied (P46)
242	shoulder bags to each of which the trade mark of 'Louis Vuitton SA' was applied (P47)
424	handbags to each of which the trade mark of 'Louis Vuitton SA' was applied (P48)
678	shoulder bags to each of which the trade mark of 'Louis Vuitton SA' was applied (P49)
144	travelling bags to each of which the trade mark of 'Louis Vuitton SA' was applied (P50)
4	document bags to each of which the trade mark of 'Louis Vuitton SA' was applied (P51)
341	handbags to each of which the trade mark of 'CHANEL' was applied (P52)
	(P42 to P52 were the subject matters of Charge 6)
4	waist bags to each of which the trade mark 'HUNTING WORLD' was applied (P53)
3	rucksacks to each of which the trade mark of 'Louis Vuitton SA' was applied (P54)
	(P53 - 54 were the subject matters of Charge 7)"

9. The Respondent admitted that all the goods were counterfeit in the manner described by the prosecution and that he had knowledge of this. He also admitted that the goods belonged to him. He claimed to have purchased the goods from a person he knew as 'Fei Wong'. He said that he on sold the goods to hawkers in the Mongkok and Yaumati areas for a profit. He also said that the two flats which were used to store the goods had been rented by him specifically for use as a store house.

10. The Respondent estimated that the value of the counterfeit goods in relation to each charge was:

Charge 1 Charge 2 Charge 3 Charge 4 Charge 5 Charge 6 Charge 7

$15,860.00 $210.00 $756,120.00 $23,980.00 $3,760.00 $280,250.00 $400.00 ____________ $1,080,610.00

11. When passing sentence the judge gave reasons for the penalties he imposed. He said:

"The accused has pleaded guilty to seven charges of possession for sale goods to which a forged trade mark was applied.

This type of offence is all too prevalent and a serious view has to be taken of them. As I mentioned earlier, in my view, the time must be coming when custodial sentences ought to be considered for such offences. However, it would seem that I am bound by Attorney General v Marvels Clothing Company Limited & Another [1987] HKLR 839. This case indicates that as a guideline a fine should be set at 40 per cent of the value of the goods. According to the summary of facts, the total value of the counterfeit goods in this case is $1,080,610.

I have the benefit of submissions by Mr TSE who has given the court background information about the accused and the offences. He has informed the court that the accused is earning $12,000 per month and has submitted that this should be taken into account when imposing the fines.

In all the circumstances, taking into account the facts of this case, the pleas of guilty and submissions by Mr TSE, the accused is convicted on each charge and is fined $10,000 on each charge."

12. It must be said immediately that this was a very serious case with aggravating features.

13. The first is that it is obvious that the Respondent was operating on quite a large scale in flagrant violation of the law and it was a continuing breach.

14. The next is that he admits that he rented two premises specifically for the purpose of storing a large quantity of counterfeit goods. From this it is evident that the Respondent was systematically operating in breach of the law.

15. The judge was quite right to observe this was a prevalent offence and that a serious view had to be taken of it. He might well have gone on to say that conduct of this nature can have severe repercussions as the reputation of Hong Kong internationally is adversely affected if this type of offence is committed. Undoubtedly it is appropriate to pass deterrent sentences. Mr. Kripas for the Secretary for Justice argued that it was wrong in principle not to impose a custodial sentence. It was argued that the Attorney General v Marvels Clothing Company Limited & Another [1987] HKLR 839 should not have been referred to as an authority for not imposing a custodial sentence as the company was a limited liability company. We accept this was not a valid reason for rejecting the option of imposing a custodial sentence. However bearing in mind that this would appear to be the first occasion when the Respondent has been found guilty of this offence we do not consider that a custodial sentence was required.

16. Mr. Kripas referred us to other cases of a similar nature.

17. We accept in general terms the validity of the suggested guidelines laid down in R v KWOK Chiu & R v Tak Fat Swimwear Manufacturing Magistracy Appeals 1406, 1407 & 1408 of 1989 that where a defendant with a clear record pleads guilty at an early opportunity fines should be of the order of 30% of the value of the goods where the value is substantial as in this case.

18. We can see no reason to depart from these guidelines here.

19. It would appear from the Judge's Reasons for Sentence that he was influenced by the submission made to him that the Respondent was only earning $12,000 per month. It would appear to be difficult to reconcile this with the statements in the agreed facts referring to the profits made by the Respondent when he sold goods to hawkers. It is not possible to arrive at any definite figure as there is no evidence concerning the turnover of goods. However the fact that the two flats were used as storerooms would indicate that the turnover was not inconsiderable. Also in this connection it would be relevant to add that the Respondent admitted being the owner of over $1 million worth of goods and this is hardly consistent with a person who is only earning $12,000 per month. It is significant to add that no attempt appears to have been made at the hearing to conduct an investigation into the Respondent's means.

20. We are satisfied that the fines which were finally imposed were manifestly inadequate. We quash the fines which were imposed and substitute the following fines:

Charge 1 Charge 2 Charge 3 Charge 4 Charge 5 Charge 6 Charge 7

$4,758.00 $63.00 $226,836.00 $7,194.00 $1,128.00 $84,075.00 $120.00 ___________ $324,174.00 ___________

We accede to the Secretary for Justice's application as indicated. We order that the Respondent will have three months to pay the fine.