HCMA549/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 549 OF 2010

(ON APPEAL FROM STCC 7639 OF 2009)

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J U D G M E N T

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1.  The appellant was convicted at Shatin Magistracy by Ms Loh of two charges, being :

(1)     Supplying goods to which a false trade description was applied, contrary to sections 7(1)(a)(ii) and 18(1) of the Trade Descriptions Ordinance, Cap. 362.

(2)     Possession for sale or for any purpose of trade or manufacture, goods to which a false trade description was applied, contrary to sections 7(1)(b) and 18(1) of the same Ordinance.

He was sentenced to 10 weeks’ imprisonment, and he now seeks to appeal his conviction out of time.

2.  There was no issue at trial that the appellant had sold the particular goods in respect to which both charges applied, that is, a kitchen hood, to an undercover Customs and Exercise Officer (PW1).  Nor was there any issue that the item sold was the same as a sample kitchen hood displayed in the shop in which he worked, and that on that sample hood was a label or a tab displayed, that the public could see, which is said to describe the revolutions per minute of the hood as being 3880.  It simply says “RPM-3880”.

3.  The appellant was represented at trial and the issue resolved down to whether or not the appellant could establish the statutory defence to the effect that all reasonable precautions and due diligence had been exercised by him; or that he could not with reasonable diligence have ascertained that the label said to display the revolutions per minute of the particular kitchen hood incorrectly stated the revolutions per minute as being 3880 rather than the true revolutions per minute which were 1262. 

4.  I do not think there was any dispute that the appellant was a salesman in the shop, and I accept what the appellant told me this afternoon that he was one of a number of salesmen and that he had more senior supervisors and managers working at the shop.  Nor was there any evidence to suggest that he was responsible for making up the label describing the goods as “RPM-3880”.

5.  I have two concerns about the appellant’s convictions; firstly, when looking at the label, it simply used the letters and numbers “RPM-3880”.  Next to that is simply a Chinese translation of the letters RPM, and I am told that character meant “revolution”.

6.  The first matter that concerns me is this : was there a false description on this label?  I asked this question simply because of the name of the product.  The brand name of the product is also RPM-3880.  If that was not the brand name, it was certainly the model description.  I do not think the Chinese translation takes matters much further because it seems to me that the character “revolution” by itself is probably an accurate description of the model reference.

7.  I have serious concerns therefore that there was no false trade description.  I bear in mind that the appellant did describe to PW1, the undercover customs officer who came to the premises to perform a controlled purchase of this item, that the revolutions per minute, the speed of the fan, was “3880”.

8.  The second concern I have about the convictions is that it seems to me that, as a part-time salesman at the premises, the appellant could be forgiven for assuming the RPM number written on the label was a description of the speed of the fan of the kitchen hood, and that an employee could accept that to be a correct statement of fact. 

9.  It seems to me that even though it was possible for the appellant to find out the true speed of this particular kitchen hood by reference to the small specification label on the side of the hood, that label could not be seen due to the way this item was displayed immediately alongside a series of other kitchen hoods, and that the only opportunity the appellant would have had to inspect the specification label showing the speed was at the time of opening up the box allowing the customer to inspect the particular item; that box coming from the warehouse whilst the sample remained on the shelf. 

10.  I think the question of due diligence here is somewhat murky as to how far the salesman was expected to go in checking the particulars of the item which he sold.  The question really becomes a little academic given my first concern about the actual description contained on the label not necessarily being a false description.  And it is because of my first stated concern about the terms of the description on the label that I am going to allow the appeal out of time.

11.  I allow this appeal.  The conviction is quashed.