HKSAR v. TONG SIN MAN, ELLY

HCMA918/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.918 OF 2000

(ON APPEAL FROM KTCC 1406 OF 2000)

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J U D G M E N T

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1. The appellant, Tong Siu Man, Elly, was charged with the offence of importing goods to which a False Trade Mark was applied, contrary to sections 12(1) and (2), and section 18(1) of the Trade Descriptions Ordinance, Cap.362, Laws of Hong Kong.

2. The particulars alleged that : The appellant, on 3 April 2000 at Kwun Tong Public Cargo Working Area in Hong Kong , imported goods, namely, A) 6 pieces of round mirror box, B) 10 Pieces of square mirror box, C) 150 pieces of tweezers, D) 664 pieces of nail clipper, E) 336 pieces of eye-browse tweezers, to each of which a false trade mark namely, "Hello Kitty", was applied.

3. The appellant denied the offence and was convicted after trial. She was legally represented at the trial and also at the appeal.

4. The learned magistrate had given a short explanation for his verdict on 17 August and later, he had prepared a full Statement of Findings covering the basis on which the appellant was convicted.

5. At the trial, the prosecution had called only one witness and much of the prosecution case had been agreed by the defence under section 65C of the Criminal Procedure Ordinance. The prosecution witness was the assistant sales manager of Sanrio Hong Kong Limited, which was the Hong Kong office of the Japanese Trade Mark owner of "Hello Kitty" products. The magistrate found a case to answer and the appellant elected to give evidence. The magistrate considered that the charge involved is a strict liability offence but the appellant could rely on the statutory defence under sections 12(2) and (3) of the Trade Descriptions Ordinance, Cap.362. Furthermore, the appellant was also entitled to invoke the statutory defence set out in section 26 of the same ordinance. In this regard, when the learned magistrate learned that the appellant sought to rely on section 26, he granted an adjournment so that the notice requirement imposed by the provision could be satisfied. However, after the trial, the magistrate concluded that he did not believe the appellant and that the statutory defence could not be established. He convicted the appellant as charged.

6. The appellant had raised two main grounds of appeal, namely that :

(1) The learned magistrate gave no, or no sufficient reasons, for disbelieving the appellant's testimony. He also contradicted himself in considering the evidence of the appellant.

(2) The learned magistrate set too high a standard for the defence of due diligence.

7. In reply, the respondent argued that :

(1) The learned magistrate had given sufficient reasons for his factual findings and why he disbelieved the appellant in relation to the topic of the authenticity of the goods and the checking of the licence.

(2) The learned magistrate had not contradicted himself in his findings. What he was saying was that even if the appellant did ask about the goods and checked the licence, she should have reasonable cause to suspect the information given by the staff of the shop and the validity of the licence. Furthermore, the magistrate was saying that even if the appellant had been shown a licence, she had made very little effort to study it to see if it look genuine. She also failed to get a copy of it. The respondent also disagreed that the magistrate had adopted the wrong standard for the due diligence defence.

8. Counsel for the appellant had very ably amplified the grounds in his oral submissions. In relation to the matters raised, I have taken time to go through the transcripts and the Statement of Findings. I believe must read the oral judgment and the Statement of Findings as a whole and not just take individual sentences out of context. The first question was whether the learned magistrate had contradicted himself.

9. In paragraph 8 of the Statement of Findings, the magistrate did say he disbelieved that the appellant had asked about the authenticity of the goods and looked at the licence. However, he did not stop there. He went on to say, "even if it had been true, that was merely cursory ...". Hence the magistrate was simply covering the alternative basis of why he found the statutory defence had not been made out. It was not a contradictory finding as submitted by the appellant. As to the other complaint raised in relation in paragraph 9, I failed to see any contradictory findings also. The magistrate stated at the beginning of the paragraph that he did not believe the appellant. Then he analysed the appellant's account and concluded that what she had said was unbelievable. That was part of the reason why he did not believe her and it could not be said to be a contradictory finding. Counsel's submission could only be valid if we were to treat each sentence in the paragraph in isolation. But that approach would not be appropriate.

10. Counsel had made a forceful submission on the cogency and credibility of the evidence of the appellant. However, on hearing the appeal, I am not entitled to conduct a reassessment of the credibility issue on paper, even though I might reach a different conclusion had I done so. The learned magistrate had seen and heard the witnesses, particularly the appellant. After an analysis of her evidence, the magistrate had disbelieved her account. He had given adequate reasons for this conclusion. I could not say that no reasonable tribunal could have made that finding. I also could not accept the submission that the magistrate had set too high a standard for the due diligence defence. In this regard, I had to agree with the respondent's submissions. Consequently, the conviction would be inevitable as there was no credible evidence to satisfy the statutory defence.

11. The appeal must be dismissed.