THE QUEEN v. MA MUK-YAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 608 OF 1986

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded guilty to two charges of having committed an offence contrary to S. 9(2) of the Trade Descriptions Ordinance. The admitted facts weere that 3 reels of cellophane wrapping paper bearing the forged trade mark TDK were found at his shop premises. The cellophane wrapping was of the type used to enclose audio casette tape. The other offence involved possession of 40 labels arid 18 boxes for use with video tapes. These had the forged trade mark "Sony" applied to them.

2. The Appellant was unrepresented when he pleaded guilty and said nothing in mitigation when asked by the learned magistrate if he had anything to say.

3. The learned magistrate took a serious view of the offences because of the damage to Hong Kong's integrity as a commercial centre which this kind of conduct can cause. On the first court in respect of the 3 reels he imposed a fine of $2,000 and ordered that the appellant be imprisoned for 3 months but also ordered that the sentence be suspended for 18 months.

4. The Ordinance provides that the maximum penalty for each offence is a fine of $100,000 aria imprisonment for 2 years.

5. The Appellant appeals against the sentence contending that the imposition of a prison sentence renders the penalty excessive in the circumstances.

6. I agree that the learned magistrate was right to take the view that the offences should be treated seriously. However, I do think that a prison sentence for a first offender who pleaded guilty in a case which both sides agree was nothing other than a small term operation was too severe. I allow the appeal, quash the sentence on the first count and in lieu thereof impose a fine of $5,000 to reflect the serious view which the learned magistrate took.

7. Appellant allowed 7 days to pay.