HKSAR v. TSUI CHING WAI

HCMA209/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.209 OF 2000

(ON APPEAL FROM WSCC 2400 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 17 February 2000 of one charge of possession for the purposes of trade of goods to which a forged trade mark was applied and secondly, possession for sale of goods to which a false trade description was applied. She was sentenced to three months' imprisonment in respect of each of the charges, and the sentences were to run concurrently. The appellant pleaded guilty before the court below and now appeals against the sentence.

2. The facts were that on 14 July 1999, Customs officers went to a store room of a flat in Bonham Stand West, Hong Kong which was operated as the "Ka Fung Ginseng Hong", a company jointly owned by the appellant and her husband. Upon entry, the appellant was found in possession of and packaging ginseng. Also in the premises were found various canned ginseng which were the subject of each of the two charges. Some of the ginseng had a forged trade mark, and the other a false trade description.

3. Having been cautioned, the appellant admitted that she possessed the ginseng which came from China, that it would be passed on to a processor who would put it into tin cans. The cans would then be returned to her and her husband for sale. Her husband had purchased the ginseng from the Mainland China and had it shipped to the premises. She was responsible for packaging, arranging for it to be canned and for sale. She full well knew the counterfeit nature of the goods and made full admissions.

4. The magistrate, in considering the matter, said this :

" The Court of Appeal in Secretary for Justice v. LAM Chi-wah CAAR 4/99 stated that hawkers and small traders in counterfeit goods should face heavy fines whereas wholesalers should face imprisonment unless there were special circumstances. It added that financial difficulties and a clear record would be unlikely to be regarded as special circumstances.

Taking into account all the circumstances of this case, I considered a sentenced at 6 months to be appropriate and I reduced that to 3 months in view of their guilty plea and their co-operation with the prosecution."

The magistrate had already found that the appellant in this matter was a wholesaler and he therefore applied the views of the Court of Appeal as set out in Lam Chi Wah in arriving at his sentence. The case of Secretary for Justice v. Lam Chi Wah was a matter in which the judgement was handed down on 7 October 1999. The offence in this case took place on 14 July 1999, some months prior to the decision of the Court of Appeal. In Sentencing in Hong Kong by Cross & Cheung, 2nd Ed., at page 130, the eminent authors said this :

"The sentence for an offence should be within the bracket prevailing at the time when the offence was committed. If there has been a change in the guidelines between the dates of offence and sentence, and this invariably involves an upward revision, then this should not operate to the detriment of the accused : R v Chu Chi-yat and Others [1993] 2 HKCLR 1, 4. Equally, if the Court of Appeal, in disposing of a particular appeal, takes the opportunity to issue new guidelines, this should not be to the disadvantage of the particular accused who happens to be before the court : R v Cheng Yeung [1989] 2 HKLR 258, 265. This approach achieves statutory recognition in section 8, Article 12 of the Bill of Rights Ordinance."

5. The magistrate made use of a judgment not in existence at the time of the offence to determine sentence.

6. The case which was recognized as the leading authority prior to that of Lam Chi Wah and which was, to an extent, disapproved in Lam Chi Wah was that of the Secretary for Justice v Yip Chi Tung [1998] 3 HKC 214. That was a case involving a warehousing of a considerable quantity of goods to which forged trade marks and false trade descriptions had been applied. The goods were clothing, handbags, various watches, keyholders and other accessories to the value of in excess of $1 million, and comprising a considerable number of items. There, Mayo J in delivering the judgment, held that an appropriate sentence was one of a fine and that respondent, in that case being a first offender, was not a person in respect of whom the court considered a custodial sentence was required.

7. Had the magistrate considered that authority, which was the leading authority at the time of the offence, I am of the view the sentence he would have passed and the one that was appropriate at that time would have been a fine rather than imprisonment in respect of this appellant. The current level of fine at that time was 30% of the value of the goods, and I am urged by Mr Whitehouse to halve that sum as there were two accused involved, the husband and the appellant. The husband had already served a sentence of three months' imprisonment.

8. This appeal is allowed upon the basis that the magistrate followed an authority which was not in existence at the time when the offence took place. The appeal is allowed and the immediate custodial sentence is set aside. In respect of the 1st count, a fine of $4,000 is imposed and in respect of the 2nd count, a fine of $35,000 is imposed. The fine to be paid within seven days from the date hereof and in default seven days' imprisonment.