ATTORNEY GENERAL v. CHOW CHUEN FU AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

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BETWEEN

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JUDGMENT

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1. This is an appeal by way of case stated from the determination by the magistrate at Tsuen Wan of three out of six charges preferred against the two Respondents respectively under Sections 9(2) and 12 of the Trade Descriptions Ordinance, Cap. 362.

2. The 1st Respondent is a partner of Winson Import-Export Company (Hong Kong) and the 2nd Respondent is a partner of the Kuan Iec Garment Factory of Macao.

3. On the 2nd day of September 1983, officers of the Customs and Excise Department opened a container at the Container Loading Basin at Tsing Yi Island Lot No. 54, Tsing Yi Island, and seized the following goods therefrom:-

4. It has been admitted that all these goods were made by the 2nd Respondent's factory in Macao, and were imported into Hong Kong for shipment to Port Said, Egypt, because there was no direct shipment from Macao to the latter city. The consignee in Hong Kong of the jeans was the Winson Import-Export Company, and the sealed containers in which the goods were found were transported to Hong Kong by lighter under a cargo receipt no. 03283.

5. In the summary of agreed facts, of which the above facts form part, the Respondents admitted that on the 2nd day of August 1983, the consignee, that is, the 1st Respondent's company, Winson Import -Export Company, applied for an import licence in respect of jeans sent to Hong Kong from Macao by the Kuan Iec Company. The licence was issued the following day. In respect of the same jeans, it is further admitted that the consignee applied for an export licence for their re-export from Hong Kong to Port Said, but there is no indication in the summary that such a licence was granted.

6. Other admitted facts are that the jeans found in the container and seized by the Customs and Excise Department had not been made or authorized by the makers of "Winston" or "Sonneti" jeans or by their respective agents. Further, the 2nd Respondent had the goods in his possession for trade having requested the 1st Respondent to receive them on his behalf.

7. The two Respondents were on these facts charged under the relevant sections of the said Ordinance - in respect of the "Sonneti" jeans, the 1st Respondent was charged, inter alia, for importing 4,500 pairs of gent's jeans to which a forged trade mark (Sonneti) had been applied, the date of importation being expressed as 2nd September 1983. The 2nd Respondent was charged, inter alia, firstly, with aiding and abetting the 1st Respondent in relation to the importation of the said goods, and secondly, with having them in his possession for the purpose of trade.

8. These charges and other charges with which this appeal is now concerned, were heard by the magistrate on 2nd February 1984, and evidence for the prosecution agreed in the form of the abovementioned summary, made under Section 65C of the Criminal Procedure Ordinance Cap. 221. On the facts set out in the summary, the magistrate found that both Respondents had a case to answer in respect of the said charges.

9. The Respondents did not give evidence or call any witnesses, and in the course of his final address to the magistrate, Counsel for both Respondents submitted that there was no evidence to show that the said jeans were imported into Hong Kong on or after 13th October 1978, that is the date when the "Sonneti" trade mark was registered in Hong Kong, hence, the principal ingredient of the charges against the two Respondents had not been proved. Moreover he pointed out that the import licence which the 1st Respondent applied for on 2nd August 1983 did not specify which jeans were involved, nor was there any evidence to indicate that the ''Sonneti" mark had been applied to the jeans without the consent of the registered owner of the trade mark. The summary of agreed facts states in respect of this matter: "The jeans which were seized had not been made or authorised by the makers (my italics) of "Sonneti" jeans or their agents."

10. In view of these submissions, the appellant sought to re-open its case by calling further evidence (a) to prove the date when the "Sonneti" jeans were imported into Hong Kong and (b) to show that no consent was given to the 2nd Respondent by the registered owner of the said trade mark for its use by the Respondent, but this application was refused.

11. A further application for a review of the magistrate's determination on the earlier application was unsuccessful, as also an application to address the magistrate further on the facts agreed in the summary. In the result, the two Respondents were acquitted of all the said charges laid against them.

12. In dismissing the charges, the magistrate found (i) there was no evidence to show that the "Sonneti" jeans were imported into Hong Kong in the container on or after 10th October 1978, and (ii) there was no evidence to show an absence of consent by the registered owner or of his agent to the use of the trade mark by the 2nd Respondent.

13. The first question of law posed by the magistrate in the case stated is whether he could properly only conclude on the admitted evidence that the seized "Sonneti" jeans had been imported on or after 13th October, 1978. In considering this question, it was submitted on behalf of the appellant that the facts in the summary do not preclude the magistrate from drawing any relevant and reasonable inferences from the admitted facts and in fact he should have drawn the inference that the "Sonneti" jeans had been imported into Hong Kong after the 10th day of October 1978 because - (i) the Customs officers had opened the said container on 20th September 1983; (ii) the goods were scheduled to be shipped to the 2nd Respondent's buyer in Port Said, Egypt; (iii) the only reason why the "Sonneti" jeans were shipped to Hong Kong was there was no direct shipment from Macao to Port Said and these goods were brought into Hong Kong solely for the purpose of taking them out; (iv) the 1st Respondent's firm to whom the Sonneti jeans were consigned, had only 9 days before, that is, the 2nd August 1983 applied for an import licence in respect of (a) jeans which had been imported from Macao and consigned by the 2nd Respondent's firm in that territory, and (b) the 1st Respondent's firm had also applied for an export licence to re-export the said jeans to Port Said.

14. However the Respondents reply that this case must be confined to what is contained in the summary and that no inferences could have been drawn from the admitted facts, nor could in any event the inferences indicated by the appellant be drawn.

15. On 2nd February 1983, when the magistrate announced that the Respondents had a case to answer on the admitted facts, the record annexed to the case stated shows that Counsel for the Respondents replied: "I have explained to Defendants their rights. They elect to remain silent and not call witnesses. Case for Defence." It appears to me that by implication the Respondents would have been able to exercise their right to adduce further evidence if they had so wished and not limit themselves to the facts set out in the summary.

16. In the Attorney General v. Wong Pang (1979) H.K.L.R. 61 it was held by the Court of Appeal that Section 65C of the Criminal Procedure Ordinance is only procedural and its purpose is to provide a simplified means of producing evidence before the Court, and evidence produced under this section is of the like nature as evidence given orally. It was also held that when evidence is adduced by way of admissions under Section 65C inferences can be drawn as they can be drawn from evidence adduced orally.

17. In the present case there was not, as far as I can read into the record of the trial an agreement by the parties that the trial was to proceed on the basis that those were the only facts in relation to the charges against the Respondents, and in my view by implication from the statement made by their Counsel there was no such agreement. There was therefore nothing to prevent the magistrate from drawing reasonable inferences from those facts. What are the inferences which may be drawn from the facts listed by the appellant?

18. The inclusion of the facts that "on 2nd August 1983, Winson Import-Export Company applied as importer for an import licence in respect of jeans sent from Macao by Kuan Iec. Issue of this licence was approved on 25th August 1983. In respect of those jeans, Winson Import-Export Company applied for export licences for re-export from Hong Kong to Port Said, Egypt;" would have served no useful purpose nor were they of any significance so far as the case against the Respondents is concerned unless such facts had some bearing on the jeans found in the container at Tsing Yi Island by officers of the Customs and Excise Department on 2nd September 1983.

19. With the other admitted facts, that is, that the goods in the container were sent here from Macao only for the purpose of transhipment to Port Said, it could be inferred that such goods could not have lain in the container mentioned for more than five years without there being any action taken to have them re-exported to Port Said as soon thereafter as possible in the course of the 1st Respondent's business nor would it be reasonable to assume that the officers of the Customs and Excise Department stumbled upon the container by chance had it been at Tsing Yi Island for that period of time if their attention had not been drawn to it, e.g. upon an application made for an export licence for their re-export from Hong Kong.

20. In my view a reasonable and proper inference could have been drawn that the goods, i.e. the Sonneti jeans, were the subject of the import licence granted to the 1st Respondent and the subject of the application for an export licence for their re-export from Hong Kong to Port Said, that is, that such jeans were imported into Hong Kong on 24th August 1983.

21. The appellant does not however fully rely on the inferences which could have been drawn from the admitted facts but contends that in the circumstances leave should have been granted for the case to be re-opened, firstly, to enable them to produce the cargo receipt number covering the transportation of the said container to Hong Kong which would show the date when the container was brought here, and secondly, to call evidence to establish whether the proprietor of the Sonneti trade mark had assented to the use of that trade mark and its application to the jeans which bear that mark.

22. Several cases were cited in support of the proposition that even where the evidence does not arise ex improviso, the Court has a discretion to admit additional evidence even after the defence had closed its case.

23. In Matthews v. Morris (1981) Crim. L.R. 495 D.C. the appellant was convicted of stealing £13 from a Miss C. At her trial, a statement from Miss C which had been served on the appellant was not produced. It was then submitted after the prosecution had closed their case that the appellant had no case to answer. Upon the application of the prosecution, leave was granted to re-open the case and the appellant was convicted. On appeal, it was submitted that evidence which was available to the prosecution ab initio should not be adduced to remedy a defect in the prosecution case once it has been closed, and that there was a discretion to re-open the case only to admit technical or formal evidence which was not disputed.

24. The appeal was dismissed and it was held that the justices had a discretion to allow the prosecution to re-open their case which was not limited to formal or technical matters but included matters of substance. It was also stated that as the evidence in dispute was omitted by a simple mistake there was no injustice to the appellant in allowing the prosecution case to be re-opened.

25. This was followed in Hon Tak-sum v. Reg. (Criminal Appeal No. 355 of 1982) where the appellant was convicted of publishing an objectionable article contrary to section 4(1)(a) of Cap. 150. He was alleged to have published two advertisements in "Real Victory News" a publication almost exclusively devoted to sex and horse-racing. One of the matters raised in the appeal was the calling of further evidence after the Defence had submitted no case to answer, one of the grounds being that the prosecution did not lead any evidence to connect "Real Victory News" with the appellant. The latter, however, made a cautioned statement to the Police at the time of his arrest that Chun Shing Pao was published by the Chun Yet Pao Co. Ltd. and that he was the person in charge of the company with full authority. Leave was granted by the Court to adduce further evidence to establish that the meanings of the words "Chun Shing" was "Real Victory" and the word "Pad" means newspaper. In dismissing the appeal, Mr. Justice Bewley adopting the principles in Matthews v. Morris held that the magistrate had properly exercised his discretion in allowing the prosecution to complete the chain of evidence linking publication to the appellant.

26. In the latter case, the additional evidence was available to the prosecution before the close of their case and the calling of the further evidence did not arise ex improviso nor was such evidence of a formal or technical nature - it was a matter of some substance.

27. Piggott v. Sims (1972) Crim. L.R. 495 was also considered in Matthews v. Morris. In that case the appellant Piggott was summonsed for driving a motor van on a road having consumed alcohol in excess of the prescribed limit. Evidence was given by police officers, who had arrested and detained the appellant, that he was required to provide a specimen of blood for a laboratory test which he did. However the certificates issued by the police surgeon and the analyst relating to the blood test were not produced at the trial before the close of the case for the prosecution. The certificates had been served on the appellant within the prescribed period and were referred to in the prosecution's opening. On application being made to re-open the case for the introduction of the two certificates, the justices were of the opinion that the evidence, being purely documentary and having been referred to by the prosecution without objection when opening the case, was of a formal nature; they did not think that the deficiency went to the merits of the case nor were the circumstances such that they should exercise their judicial discretion to refuse to re-open the case. The appellant appealed against the justices' granting leave to re-open and in the judgment of Mr. Justice Melford Stevenson: "As the case stood, at the close of the prosecution's case there was indeed no material which would have justified a conviction had that evidence stood alone. But there is abundant authority for the proposition that, whether a defect in the prosecution's case is merely procedural or whether it goes to the substance of the case the justices have a discretion even though the case for the prosecution has been closed to permit the prosecution to put in that evidence. I cannot sufficiently emphasise that it is a matter for discretion, and these justices took the view that it would be a proper exercise of their discretion to permit those certificates to be put in at the stage at which they were invited to receive them." In Middleton v. Rowlett (1954) 1 WLR 831, the prosecution, in a case of dangerous driving, had omitted to prove the identity of the driver and this having been pointed out by the Defence, the justices dealing with the case refused to permit evidence of his identity to be tendered after the prosecution had closed their case. In his judgment, Lord Goddard, C.J. said: "Although what has happened here is in some ways regrettable and although the court would not have interfered for a moment if the justices had exercised their discretion the other way, we cannot say that they were bound to exercise their discretion in favour of the prosecution."

28. In commenting on this part of the judgment, Mr. Justice Melford Stevenson in Piggott's case said these: "Those words, and indeed much else in the same report, abundantly support the proposition that justices in such a case have a discretion to permit the tendering of evidence and to receive such as there was in this case, even though the prosecution's case has previously been closed."

29. In R. v. John McKenna (1956) 40 Crim. app. R. 56 the appellant was convicted of exporting certain articles in contravention of Article 2 of the Export of Goods (Control) (Consolidation) Order, 1952. In order to be within the terms of the Order, the articles had to be "goods subjected to any process of manufacture, wholly or mainly of iron or steel" and not elsewhere specified in the Schedule to the Order. The articles in question which included steam-rollers, lorries, etc. were not specified in the Schedule. At the close of the prosecution's case, the defence submitted that there was no evidence that any of the articles in question were made wholly or mainly of iron or steel. The Court recalled one of the prosecution withnesses to give evidence of the materials of which the articles in question were made and after the witness had given such evidence, ruled that there was a case to go to the jury. The Appellant appealed and Mr. Justice Byrne said: "It is only necessary to refer to Sullivan (1922) 16 Cr.App.R.121; where it is at once to be seen that a judge, in the circumstances in which the learned Commissioner acted in this case, has complete discretion whether a witness shall be recalled, and this court will not interfere with the exercise of his discretion unless it appears that thereby an injustice has resulted. It is quite obvious that there was no injustice in this case, and indeed this court is of opinion that without the evidence of the recalled withness there would have been sufficient evidence for the case."

30. There is no doubt from the above authorisites that the magistrate in the present case had the power to exercise his discretion to re-open the case in the circumstances which arose, and hear further evidence, but the question is whether he should have exercised it in favour of the appellant, and whether having exercised it in the way he did he acted wrongly.

31. Royal v. Prescott-Clarke & another (1966) 2 All E.R. 366 was a case where it was held that justices who had refused an adjournment to enable the prosecution to adduce further evidence of a formal nature, wrongly exercised their discretion. In the judgment of Lord Justice Winn, "In my opinion, it was a matter for the discretion of the justices in this case, as in any other case when the circumstances are not very peculiar and special, whether or not to grant such an application for an adjournment. Here the application for the adjournment was made in order to establish by production of further evidence something which was only a formal requirement which had to be satisfied. Counsel for the appellant has submitted to the court that, in every case where such a situation arises before justices, they are bound as a matter of law to grant the adjournment, and he has relied for that submission on the decision of Duffin v. Markham. I think that that is putting the matter too high and that Counsel's submission is too strong and in that form I do not accept it. In any such case as this one when there is no question of the prosecution being given a further opportunity to go out and scout about for evidence to strengthen their case, but it is merely a matter of their going to look in a newspaper, and if they find there what they need, bringing the newspaper to the court, in all ordinary circumstances and in the absence of any conduct on the part of the prosecution which might be properly described as misconduct or election not to call other evidence and in the absence of any grave potential prejudice to the accused, there is only one way in which the discretion can properly be exercised. In this particular case, the justices wrongly exercised the discretion which was entrusted to them; they should in my view, have granted the adjournment in the particular circumstances of this case."

32. Duffin v. Markham & another (1919) KB 581 referred to above is a case where it was held that an adjournment should have been granted to allow the prosecutor to prove a formal matter.

33. The Commonwealth cases cited by Counsel for the Appellant do not take the matter further: In the Queen v. Nash (1958) NZLR 314 the prosecution in a case of incest had failed to adduce evidence of the relationship between the parties. The Judge at the trial recalled the witness to adduce such proof and it was held that he had acted correctly in remedying a mere slip or accident by recalling a Crown witness after the Crown had closed its case. Similarly, in Henning v. Lynch (1974) 2 NSWLR 254, it was held that after the close of the case for the prosecution and before the commencement of the case for the defence, the prosecution wishes to re-open and to tender further evidence omitted by mistake, accident or want of foresignt, the tribunal should allow the evidence to be given, unless there is some very good reason to the contrary. In R. v. Gregoire 48 Canadian Criminal Cases, 288, where Crown Counsel had inadvertently closed his case without calling all the necessary evidence, the trial judge acceded to a request to have the case re-opened in the interests of justice, stating that the omission to call certain witnesses was a mere slip and that such a slip would not prejudice the prisoner in his defence. It was held that in the interests of justice the trial judge had wisely exercised his discretion especially where the names of the witnesses Crown Counsel had omitted to call were on the back of the indictment and the accused was not prejudiced in his defence.

34. It cannot be said in the present case that the two matters which the Appellant sought to prove at the end of the case were purely formal or that they were matters of a technical or trivial nature, or that such evidence was omitted by a mere slip, inadvertence, or mistake. Such matters went to the heart of the case against the Respondents and it could not be said that their omission from the summary of admitted facts was a mere oversight, especially the admitted fact: "The jeans which were seized had not been made or authorised by the makers of Winston or Sonneti jeans or their agents.'' It should have been obvious that the only person who could have assented to or authorised the application of the trade mark "Sonneti" to the jeans manufactured by the 2nd Respondent's factory in Macao, was the proprietor or owner of the said trade mark, or of his agent. It would appear to me that the principles enunciated by Lord Justice Winn stated above would have application to the present case since the Respondents would have been gravely prejudiced if the discretion had to be exercised in favour of the Appellant. I think the overriding consideration is whether there would be a possibility of injustice done to the Respondents if the application were allowed. In the circumstances of this case, I think there would be, and in my view, the magistrate did not exercise his discretion wrongly.

35. The Appellant further contends that the burden of proving the assent of the proprietor to the use of the trade mark "Sonneti" lies on the Respondents, citing as authority Section 94A(2) of the Criminal Procedure Ordinance, Cap. 221, which provides:

36. Further, Section 9(4) of the Trade Descriptions Ordinance, Cap. 362 expressly provides that "In any prosecution for an offence under subsection 1(a) or (b) the burden of proving the assent of the proprietor shall lie on the Defendant."

37. This subsection has no application to the Respondents as they had been summonsed under section 9(2) of the Ordinance. Mr. Longley however argues that under the Merchandise Marks Ordinance, Cap. 41, which the Trade Descriptions Ordinance replaced, the law up to 1981 was that the burden of proving assent was on the defence and section 9(4) was inserted into the latter Ordinance ex abundanti cautela. I do not agree - if the Appellant wished to take advantage of that subsection, there was no reason why on the same facts the 2nd Respondent could not have been summonsed under section 9(1)(a) of the Ordinance.

38. Mr. Longley further argues that section 9(4) does not exclude the application of section 94A(1) of the Criminal Procedure Ordinance so that the Respondents would have been required to prove that they had the assent of the proprietor of the Sonneti trade mark to use it on jeans produced by the 2nd Respondent's factory in Macao. Although there is some force in his argument, the effect of Section 94A(1) of the Criminal Procedure Ordinance is to shift the burden of proof to the Defendant only if the matter to be proved is peculiarly within the latter's own knowledge. Can it be said in this case that such assent was peculiarly within the knowledge of the Respondents? My answer to this is "No" since the necessary evidence was available to the Appellant at the time when the summary of admitted facts was drafted and at the time of the trial since the Appellant was able to say that upon the application for a rehearing that the error which appeared in the summary and to which I have earlier referred to could have been cured simply by adducing evidence from the sole agent of the proprietor. I do not think that there is any reason why the general principles should be departed from in this case.

39. I would therefore answer the further questions set out in 14(c), (d), (e) and (f) as follows:

14(c) - No.

14(d) - Yes.

14(e) - No.

14(f) - No.

 

The appeal is accordingly dismissed.