THE QUEEN v. NG WEN CHIEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 257 OF 1987

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JUDGMENT

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1. The appellant was convicted on his own plea of 6 charges of possession for the purpose of trade and manufacture goods to which forged trade marks were applied. These charges relate to trade marks used in connection with the sale of rice, i.e., the Golden Elephant, Kangaroo, Golden Crown, Double Ram, Sunlong, Thumb Brand device, Golden Way, all popular brands of rice sold locally, and the White Cat Brand used in relation to in detergents. He also pleaded another 6 charges of possession of instruments for the purpose of forging the trade marks. These consisted of plastic plates and film negatives and were to be used for the printing of the Golden Elephant, Kangaroo, Golden Crown, Double Ram, Golden Way and White Cat trade marks on poly-bags. On the 1st 6 charges, he was sentenced to one month's imprisonment on each charge and on the latter 6 charges he was sentenced to imprisonment for four months on each charge, all these sentences to be served concurrently. The total sentence was therefore 4 months imprisonment for all the offences.

2. The appellant is the General Manager, of the Chuen Cheung Polyethylene Company, a plastic bag manufacturer with a factory in Tsuen Wan. Information was received by the Customs and Excise Department regarding the activities of the factory, and on the 8th August last year, a raid was conducted in the factory premises and there were found the offending articles. Altogether, there were about 6,000 bags found in the factory. There were also 400 bags found in the appellant's car and in his residence were 4,800 bags bearing the White Cat Brand. A search of his brother-in-law's residence revealed the plastic plates and the negatives and also 17,500 bags on which the White Cat trade mark was printed. The appellant knew that these bags were to be used for the purpose of packing rice of the various brands mentioned, and of the detergent powder. Submissions were made on his behalf in mitigation before the Magistrate amongst which was his poor financial situation at the time leading him into committing these offences. It was also submitted on his behalf that the seized bags were for packing articles for local consumption and not for export, and consequently his activities did not affect the integrity of Hong Kong as a commercial centre. The appellant is 46 years of age, is married and has two young children to look after. The net profit which was derived from the business of the factory was stated to be about $4,000 a month and the value of the bags which were seized was $7,000 - there was only a very small profit margin on the printing and production of these bags. The maximum penalties for offences which the appellant pleaded guilty to are $100,000 fine and imprisonment for 2 years. In this appeal, it was submitted on behalf of the appellant that the Magistrate was wrong in imposing an immediate custodial sentence on the appellant. Several cases of similar nature have been cited in support of the submission that no custodial sentences should be imposed particularly in view of the fact that the appellant is a 1st offend matters which were advanced for the appellant in mitigation, and he has given good reasons why a sentence of immediate imprisonment was imposed on the appellant in this case. None of the cases cited in support of the appellants submission are associated with the possession of instruments for forging trade marks, nor are any related to necessities with which this case is concerned. In Fung Ka Shing v. R., C.A. 1286/77, the appellant, a hawker of radios in the market, had in his possession 4,000 locally produced and inferior radios, some of which bore trade marks of several well-known international companies, was sentenced to 15 months' imprisonment and this sentence was upheld. The Court of Appeal considered this offence to be a serious one and took into account the fact that the appellant had affixed the false trade marks to the radios concerned and the large number of radios involved in the offence. In the present case, the marks relate to a staple food which is consumed by the majority of the local population and therefore these offences will, in all likelihood, affect a very large number of people in Hong Kong. The appellant must have known that these bags were to be used for the packing of rice for local consumption and were to be used for deceiving a very large section of the public in Hong Kong. It would be naive to think that superior rice would be placed in these bags, and I agree with the learned Magistrate that by forging these trade marks and printing them on these bags, the appellant was assisting in deceiving a large section of the local population. I do not pretend to lay down any tariff for this kind of offence because each case must depend on its own circumstances. I think the considerations in this case are that these trade marks would affect a large number of people in Hong Kong and secondly these trade marks are applied to bags which will eventually contain goods which are necessities of life in Hong Kong. The Magistrate was, in my view, fully entitled to take all these circumstances into consideration when he sentenced the appellant. Unlike the appellant in the Fung case, it appears that it is not difficult to produce the necessary instruments to forge such trade marks and have them printed on polybags and it would be easy for the present appellant to continue in this kind of business unless deterred from doing so. It is doubted that his financial position is as bad as 4as been made out, in view of the fact that both he and his wife have been able to buy the factory premises where these bags were printed and the size of the factory itself is not small by any means according to the standards of Hong Kong. Whilst these offences do not directly damage the integrity of Hong Kong as a business centre, the owners of the trade marks who import the rice from Thailand, from China and from Australia should, equally have, the protection of the law. I do not think it is wrong in principle to impose immediate custodial sentences on a 1st offender where the offence is of a serious nature and where a deterrent sentence on a particular individual is desirable if the circumstances so warrant. This appeal against sentence is accordingly dismissed.