THE QUEEN v. FONG CHIN HUNG

IN THE COURT OF APPEAL

1987, No. 437
(Criminal)

Headnote

Sentence - term of imprisonment imposed because of inability to pay fine – wrong approach.

IN THE COURT OF APPEAL

1987, No. 437
(Criminal)

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J U D G M E N T

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Yang, Ag. C.J.:

1. The Applicant sought leave to appeal against his sentences totalling two and a half years upon being convicted after trial on six charges of offences brought under different sections of the Trade Descriptions Ordinance, Cap. 362.

2. The offences related to the Applicant's activity 1n helping to produce crude imitations of watches of well-known brand names, namely, Titoni, Citizen, Titus, Orient and Chunlei, and other watches bearing false trade descriptions or false trade marks.

3. Seeking to follow the guideline suggested by Cons, J.A. (as he then was) in the Attorney-General v. Marvels Clothing Ltd. and the Attorney-General v. Eagles Eye Hong Kong Ltd. (Applications for Review No. 7 and No. 8 respectively - unreported), the trial judge came to the conclusion that if he were to take into account the retail price of genuine watches and parts, the mathematical calculation would result in a series of fines totalling some $2.2 million. From a reading of Mr. Justice Cons's judgment, it is clear that the guideline laid down in the two Reviews refers to a fine equivalent to 40 percent of the value of "the goods", meaning the fake goods and not the genuine articles (vide p.6, penultimate paragraph of the judgment). The trial judge therefore misunderstood the authority he cited. We were informed by Mr. Cross for the Crown (and it was not disputed) that the total estimated cost of the fake watches and watch parts was just under $400,000, a fine based on 40 percent of which would be $160,000. This was a sum which was clearly beyond the Applicant's ability to pay, for his available assets, according to the trial judge, were but $70,000. That being the case, and dismissing the imposition of suspended sentence as being inappropriate in this instance, he came to the conclusion that the only appropriate sentence was an immediate custodial sentence.

4. With the greatest respect to the judge, we are bound to say that the approach he adopted was incorrect. Roskill L.J. in the case of Reeves (1972) 56 Cr. App. Rep. 366 said in a situation much similar to ours (at p.369) -

“But unfortunately, in the view of this Court, the matter does not stop there because if this Court allows this nine months' sentence to stand, this Court feels that, having regard to the language which I have already quoted which the learned Assistant Recorder used, the appellant, who is in very bad health through no fault of his own and who has suffered a bad stroke within the last year or two, may be left with a sense of grievance and others may be left with the impression that he has been sent to prison solely because of any other merit in this appeal - for there is none – and, as I have already said, this offence was one which merited the nine months' sentence, this Court proposes to substitute for the sentence of nine months' immediate imprisonment, a suspended sentence of nine months, but it wishes to make quite clear that had the words quoted not been used by the learned Assistant Recorder so as to create this unfortunate impression, the Court would have let that nine months' sentence stand without any hesitation. The appeal will be allowed to that extent.”

5. As the Applicant was sentenced to an immediate term of imprisonment purely because of his inability to pay the fines - and in our view the appropriate fines should total $160,000 and not $2.2 million - the remarks of Roskill L.J. are pertinent. If it had not been for the erroneous reason given by the trial judge for imposing an immediate custodial sentence, we would not have thought that on the facts of the case an immediate custodial sentence would be in any way improper.

6. For these reasons, and having regard to the fact that the Applicant had already been in custody for about one month and one week, we allowed the application, treated the application as hearing of the appeal, allowed the appeal and quashed the sentences, substituting therefor a fine of $10,000 on each charge, making a total of $70,000. Fourteen days to pay.