THE QUEEN v. HO FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1167 of 1986

______________

______________

______________

JUDGMENT

______________

1. The appellant pleaded not guilty to three charges, each alleging the commission of an offence, contrary to section 12(1) of the Trade Descriptions Ordinance. The particulars were that, on each of three different dates, he exported to the United States of America tins of abalone to which a forged trade mark was applied. On each charge he was convicted and fined $5,000 and ordered to pay $5,000 costs. He now appeals against the convictions and the orders as to costs.

2. On the evidence before the learned magistrate, there

could be no doubt that the goods were exported to the U.S.A. by a partnership registered under the Business Names Registration Ordinance in the name of "Wing Lung Hong". The evidence also clearly established that a false trade mark had been applied to the tins, the subject of each "charge.

3. Section 12 of the Trade Descriptions Ordinance provides as follows:

“12.(1) Subject to section 13, no person shall import or export any goods to which a false trade description or forged trade mark, which expression shall be construed in accordance with section 9(3) is applied.

(2) Any person who imports or exports any goods contrary to subsection (1) commits an offence unless he proves that -

(a) he did not know, had no reason to suspect and could not with reasonable diligence have found out that the goods are goods to which a false trade description or forged trade mark is applied; or

(b) the goods are not intended for trade or business.

(3) This section shall not apply to any goods in transit.”

4. It was Mr. Mayne's contention that "the presumption of mens rea" under section 12(2) operated only after proof that the appellant had in fact exported the offending goods, All the documents tended to support proof of export were signed by one HO Man-wah but there was no other evidence to show the actual re1ationship between HO Man-wah and the firm "Wing Lung Hong". The appellant concedes that the magistrate was entitled to find that the firm "Wing Lung Hong" was the exporter of the goods. A document certified by the Commissioner of Inland Revenue to be a true copy of a document in his custody stated that the appellant was the manager and partner of Wing Lung Hong between the 2nd day of May, 1969 and the 16th of December, 1985. The subject goods were exported on the 31st of December, 1984, the 13th of January, 1985 and the 20th of January, 1985. There was therefore prima facie evidence by virtue of the provisions of section 19(2) of the Business Registration Ordinance that the appellant was a partner of the exporting firm at the material time. Whatever may have been the relationship between the firm and HO Man-wah, the evidence before the learned magistrate was that the appellant together with others exported the goods. Consequently, in the circumstances of this case, he was guilty of an offence contrary to section 12(1) unless he proved the matters mentioned in section 12(2)(a). The prosecution therefore proved all that was required to be proved in order to support a finding that the appellant was guilty of the offences with which he was charged. There is accordingly no merit in the appellant's grounds of appeal against the convictions.

5. Two witnesses from the United States were called to give evidence for the prosecution. One was a Customs Officer employed by the Government of the United States of America. He gave evidence of having seized the shipments concerned and produced the relevant shipping documents. The other witness was an employee of the company which was the authorized dealer in the United States of America for the Mexican company which owned the genuine trade mark. The magistrate made his orders as to costs because he was of the view that the prosecution had been put to considerable expense in bringing the witnesses from the United States of America, an expense which the defence forced the prosecution to incur by insisting that the witnesses be called. In his Statement of Findings, the magistrate said that "examination of the record on the adjournments shows that the defence insisted upon the US witnesses being called or that the case be ONE'D and in fact themselves asked for costs.”

6. Mr. Mayne, for the appellant, complains that the defence had at no time before the actual day of trial been given any statements to indicate what those witnesses would say. The defence therefore had no opportunity to admit the facts which the evidence of the witnesses would support. He submitted that in those circumstances it was "harsh to order costs".

7. Section 28 of the Ordinance empowers a magistrate to make such order as to costs as he may think fit. The discretion is therefore very wide. If exercised judicially, there can be no basis for interference with a magistrate's decision to order costs. The submissions made by Mr. Mayne on the hearing of this appeal were, according to the record, not made at the trial. It does appear from the record, however, that the defence was never given the opportunity to make any submission on the question of costs.

8. The record discloses that at the conclusion of mitigation (which dealt solely with the question of quantum of fine) the learned magistrate announced his penalties and his orders as to costs, By not providing the appellant with the opportunity to make submissions on the question of whether or not the magistrate should exercise his discretion under section 29, the learned magistrate has failed to exercise his discretion judicially, I therefore allow the appeal against those orders, On each charge, the order for costs will be set aside.