THE QUEEN v. HOGLORY CO LTD AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 897 OF 1989

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BETWEEN

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J U D G M E N T

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1. The two appellants pleaded guilty to two summons each, namely, possession for the purpose of trade or manufacture of items to which a forged trade mark had been applied and possession of instruments for the purpose of forging a trade mark.

2. They were fined $30,000 on each summons making a total of $120,000. The second appellant, on the two charges, was also given an immediate custodial sentence of 6 months concurrent.

3. The magistrate calculated the total fine for the two appellants as three times the market value of the goods.

4. I am grateful to the Crown for providing the court with a list of statistics for the offences in question.

5. Of the 33 cases heard since 1st January, 1989 there were only two cases in which an immediate custodial sentence was imposed. The vast majority (25) were simply fined. The remaining 6 were given, in addition, a suspended sentence. The fines show no discernible method of calculation. Indeed they range from very much less than the market value to some very much more.

6. I was addressed on a formula based on a multiplier, ranging from 2½to 8½ times the profit - the other formula was based on the market value of the goods.

7. The two appellants pleaded guilty, both were first offenders.

8. I allow the appeals. I quash the sentence of six months as being manifestly excessive and substitute therefore a sentence of three months suspended for 18 months. The fines are set aside and substituted by fines of $5,000 on each charge.