THE QUEEN v. POON KAR-WOO AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 647 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 first appellant was convicted of one charge of importing goods to which a false trade description was applied. The second appellant was convicted of one charge of aiding, abetting, counselling or procuring another person to import goods to which a false trade description was applied.

2. The second appellant was intercepted on his return to Hong Kong and found to be in possession of cigarette lighters bearing the name Pierre Cardin. It is not in dispute the lighters were brought in at the request of the first appellant.

3. The Crown's case was that those lighters, imported from Japan, are not genuine Pierre Cardin lighters.

4. At the beginning of the trial the prosecution had asked for an adjournment because a witness, Mr Albert D. Lucky, was not available that day and that without his evidence the Crown could not (sic) prove the goods bore a false description. The adjournment was refused and the Crown called Mr Graham Black. He was the sole Crown witness.

5. Mr Black is the Managing Director of Marlow Promotion Ltd., the sole agent and distributor for Hong Kong and Macau of Pierre Cardin lighters. He had examined the lighters in question and had found them to be 'fakes', many of them had blisters on the lacquer, they were badly manufactured. He produced a Pierre Cardin catalogue (P9) in which lighters of the design found in the possession of the appellants were not to be found. Hiro Mori were the only Pierre Cardin licensees in Japan. They were not manufacturers of Pierre Cardin lighters but they had the sole authority to authorize the manufacture of Pierre Cardin lighters in Japan. He did not know if they had given any authority for the manufacture of Pierre Cardin lighters. Hior Mori had a representative in Hong Kong. That representative was not called.

6. The magistrate accepted Mr Black's conclusion and found the lighters were counterfeit.

7. The magistrate having found the counterfeit lighters had been imported to Hong Kong by the appellants, the onus then fell on the appellants by virtue of section 12(2) of the Trade Description Ordinance to prove, on, the balance of probabilities, that they had no reason to suspect and could not with reasonable diligence have found out the lighters carried a false description.

8. Mr Lawrance Lok for the appellants contended that there had been no evidence upon which the magistrate could have come to the conclusion, beyond reasonable doubt, that the lighters were counterfeit - Mr Black's evidence that the quality and packing were inferior, and that they were not in the catalogue, did not necessarily lead to the sole conclusion that they were not genuine. Pierre Cardin might have authorized the production of a cheaper range of his lighters in Japan which he might not have wanted to include in the catalogue of his superior products.

9. This is highly unlikely but I have been unable to shake off a lurking doubt about the verdict in this case and must therefore allow the appeal, quash the conviction and set aside the fines.