HKSAR v. MOON, AHMED

HCMA 428/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 428 OF 2017

(ON APPEAL FROM KCCC 562/2017)

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J U D G M E N T

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1.  The Appellant was charged with the following two offences :

Charge 1 :  Possession for sale or for any purpose of trade or manufacture goods to which a forged trade mark was applied[1]; and

Charge 2 :  Taking employment while being a person in respect of whom a removal order is in force[2].

2.  He pleaded not guilty before a Deputy Magistrate (“the Magistrate”) and was convicted after trial of both offences.  The Magistrate imposed the following sentences on him :

Charge 1 : 3 months’ imprisonment, and

Charge 2 : 22 ½ months’ imprisonment.

The magistrate ordered 1½ month of the sentence for Charge 1 to run consecutively to that of Charge 2.  He further ordered a 2 weeks’ suspended sentence be activated in full and to run wholly consecutively to the sentences in the present case, making a total imprisonment term of 24 months and 2 weeks.

3.  The Appellant appealed against both the convictions and the sentences.

Prosecution case

4.  The Appellant has been a Form 8 holder since 10 August 2016.  On 30 September 2016, a Removal Order was issued by the Immigration Department against the Appellant. 

5.  On 19 February 2017, the Customs mounted a joint anti-counterfeiting operation with the police at Tsim Sha Tsui.  At Nathan Road, the Appellant asked a police officer posed as a tourist if he wanted a handbag or wallet.  When the officer expressed interest, the Appellant led him to a room in a building, introduced handbags to him and said all were copy bags of good quality.  He also informed the officer of the price of different bags. He was then arrested.  Inside the flat, a total of 157 handbags with trade mark “Vivienne Westwood” were found, 134 of them were genuine and 23 were confirmed to be counterfeit.

Defence Case

6.  At trial, the Appellant testified[3].  His testimony may be summarized as follows. 

7.  He was relying on financial support from family members in Bangladesh and USA of an average amount of about $5,000.

8.  On the day of offence, he was approached by a South Asian male who asked him whether he wanted handbags.  As he wanted to buy a gift for his wife and daughter, he followed that man to a flat together with the officer.  There he was shown some bags.  He did not like the goods and

Findings of the Magistrate

9.  The Magistrate duly reminded himself of the burden and standard of proof.  He found all prosecution witnesses to be honest and credible and rejected the evidence of the Appellant.  He found the event described by the prosecution witnesses true and reliable.  He found the Appellant had possession over all the bags knowing some of them were counterfeits and he possessed them for the purpose of sale.  He found that the Appellant was not the boss or partner of the business and that the only irresistible inference was that he was employed to do the job.

10.  He further found that the statutory defence and the common law defence were on the evidence not available to the Appellant.

11.  On these findings, he found the prosecution has proved beyond reasonable doubt the charges against the Appellant.

Grounds of Appeal

12.  The Appellant acted in person at the appeal.  As regards his appeal against the convictions, he related again his version of what had happened at the time of the arrest.  The version he said at the appeal was in line with his testimony at trial.  He stressed that the police officers framed him up and gave false testimony in court.  He submitted that the Magistrate was erroneous in accepting the evidence of the prosecution and rejecting his testimony.  He urged the court to examine the case with care and set aside the convictions.

Discussion and Consideration

13.  In the present case, the evidence adduced by the prosecution showed a case of selling of counterfeits.  On the other hand, if the evidence of the Appellant is true or may be true, he was only an innocent customer and therefore must be acquitted.

14.  The first task of the Magistrate was to assess the credibility of the witnesses. 

15.  In performing this duty, the Magistrate clearly had in mind the allegation of framing up. 

16.  Having considered the evidence, he found the South Asian male as described by the Appellant fictitious since if he was in existence it would be inconceivable that the officer had let him go and did not seize the keys from him if the flat was locked.  He also considered the story about the police officers trying to use the Appellant’s keys to open the flat when they had the keys which fit the lock unreasonable as the officers could have easily planted the key on him in the alleged situation of framing up.

17.  He had considered the following submissions put forward by the Defence Counsel and with reasons provided did not consider these matters have such an impact which caused him to doubt the prosecution’s evidence :

(1)   The prosecution evidence that the flat was left unlocked is not reasonable as there were many bags inside, most of them were genuine expensive bags;

(2)   No finger print of the Appellant was found; and

(3)   The Appellant had not tried to escape after the officer had disclosed his police identity and waiting for reinforcement.

18.  In relation to assessment of credibility of witnesses, the powers of an appellate court to review the findings of the Magistrate are circumscribed as what the court can do is to decide the matter upon the record of the evidence and the reasons given by the Magistrate.  The court is generally reluctant to disturb the finding of the Magistrate on assessment of credibility because as Bokhary PJ said in CHOU Shih Bin v HKSAR [4] that “the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed”. Without the advantage of seeing and hearing the witnesses, generally the appellate court will only disturb such finding where it is plainly wrong.

19.  The Appellant failed to advance sufficient reasons to persuade me that the assessment of credibility by the Magistrate should be disturbed.

20.  The Magistrate’s finding that the Appellant was acting in the course of selling handbags with knowledge that some of them were counterfeits is well supported by evidence.  So is his finding that the Appellant was only an employee not the boss.

21.  Magistracy appeal is conducted by way of rehearing.  I have considered the evidence adduced before the Magistrate and cannot say that his findings and conclusion are plainly wrong.

22.  The case put forward by the Appellant is one of total denial.  The evidence did not disclose anything to support either the statutory defence[5] or the common law defence[6].  In any case, the Magistrate found that the Appellant had the necessary knowledge and this finding is not flawed.  With this finding, there is no place for the defence.

23.  The conviction is safe and satisfactory.  I therefore dismiss the appeal against conviction.

Sentence

24.  In sentencing, the Magistrate took into account the following matters :

(1)   Quantity of the counterfeits involved;

(2)   The Appellant is 53 years old, married;

(3)   He is a claimant for non-refoulement;

(4)   His wife and son are in Bangladesh, his daughter is in USA;

(5)   He has two previous convictions, both for Breach of condition of stay, one in 2000 and the other in 2016; and

(6)   For the latter conviction, the Appellant was sentenced to 2 weeks’ imprisonment suspended for 3 years, and hence the Appellant committed the present offences during the operational period of the suspended sentence.

25.  For Charge 1, the Magistrate adopted 3 months as starting point and for Charge 2, 22½ months.

26.  He did not consider there was any justification for reduction.

27.  He did not see any reason not to activate fully the suspended sentence.

28.  Having regard to totality, he ordered 1½ months of the sentence of Charge 1 to run consecutively to that of Charge 2 and these sentences to run wholly consecutively to the activated suspended sentence, making a total sentence of 24 months and 2 weeks.

29.  The Appellant submitted that the sentences are too heavy and he asked the court to take into account that he is not in good health and has a condition of high blood pressure.

30.  For the offence relating to selling of goods in contrary to provisions in Trade Descriptions Ordinance, the Court of Appeal in SJ v LAM CHI WAH [7] took the view that they are akin to offences under the Copyright Ordinance.  Without setting any guideline in sentencing, the Court made the following observations :

(1)   The sale of counterfeit goods as genuine ones and at the prices of genuine goods may be more serious than the sale of counterfeit goods at low prices not as genuine goods but as counterfeits;

(2)   Selling of counterfeit goods on a wholesale basis is generally more serious than selling by hawkers or traders on a retail basis;

(3)   For the latter, if fine is the appropriate sentence it should be a heavy one so that the crime does not pay, the level of fine needs not necessarily be linked to the value of the goods;

(4)   If such offender is a repeated offender, an immediate custodial sentence may have to be seriously considered; and

(5)   For wholesalers, imprisonment term should be imposed unless there are special circumstances and for this purpose financial difficulties and a clear record would unlikely be regarded as special circumstances.

31.  In cases such as HKSAR v Yeung Mei Lin [8], HKSAR v Fong Tat Wing[9], HKSAR v Ng Ka Yu [10], and HKSAR v Man Hoi Kei[11], the court has taken into account the abovesaid matters in deciding the nature and level of sentence to be imposed.

32.  In HKSAR v COLLAMAR ELIZA TURLA[12], the appellant was a small trader running a stall at a trade fair.  The goods concerned were 12 mobile telephones which bore false trade description concerning Nokia, the value of goods was around $12,500.  The conduct was described as a fairly sophisticated criminal enterprise.  Although the appellant was a first time offender, Deputy High Court Judge Line (as Line J then was) considered an immediate custodial term justified and held that a 3 months’ sentence should be imposed after plea.

33.  In HKSAR v CHAU HUNG YING[13], some 123 clothings bearing false trade marks of Burberry, Prada, Chole and Armani were involved. The value was about $45,700.  Having considered the whole of the relevant circumstances, McMahon J formed the view that the goods were sold as genuine goods.  His Lordship held that despite the appellant was a first time offender, in the circumstances a deterrent sentence was called for and he adopted a starting point of 6 months.

34.  In the present case, the Appellant expressly told the officer that the goods offered to him were copy bags.  There were 23 counterfeits, the value was quite substantial.  The counterfeits were sold in an upstairs flat.  On top of the 23 fake bags, there were also 134 genuine bags. I do not find myself able to be sure that the flat was kept for the primary purpose of selling counterfeit bags and an inference of a medium scale operation justified on evidence.  Notwithstanding that, the potential loss to the trade mark owner must be substantial.

35.  The 3 months starting point adopted for Charge 1 is not light but it is not out of line with precedents and cannot be said to be exceeding the reasonable range.  There are insufficient justifications to disturb it.

36.  For the unlawful employment offence (Charge 2), the Appellant was subject to a removal order, it has been firmly established by the Court of Appeal in HKSAR v Usman Butt [2010] 5 HKLRD 452 that a sentence of 15 months’ imprisonment should generally be imposed for this offence upon a guilty plea.  This is the level of sentence the Magistrate imposed.  There are no reasons to depart from the guideline.  The sentence is entirely proper.

37.  As regards activation of the suspended sentence, the Magistrate has the power to do so.  Indeed, section 109C(1) provides that a court shall[14] make an order that the suspended sentence shall take effect with the original term unaltered unless[15] the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence.

38.  In Li Kim-wai v R [1980] HKLR 833, Huggins JA said that “the whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.”

39.  The offence for which the suspended sentence was imposed was for Breach of Conditions of Stay.  During the operational period of the suspended sentence, the Appellant committed further offences in relation to false trade mark and unlawful employment.

40.  I can find no flaw in the Magistrate’s decision of activating the suspended sentence and activating it in full.  It is not unjust to order the present sentence to run wholly consecutively to the fully activated suspended sentence.

41.  The total sentence which the Appellant faces as a result is 24 months and 2 weeks for the two cases.  In my judgment, it is neither wrong in principle nor manifestly excessive.  I therefore dismiss the appeal against the sentences as well.