THE QUEEN v. TAK FAT SWIMWEAR MANUFACTURING

IN THE SUPREAE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL Nos. 1406, 1407 & 1408 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 appellants pleaded guilty in the magistrate's court to 10 charges alleging offences contrary to Section 36(1)(a) of the Import and Export Ordinance and, in respect of the 1st appellant, to a charge of a breach of Section 7(1) of the Trade Descriptions Ordinance.

2. The learned magistrate in relation to the offences under the Import and Export Ordinance used the guideline set down in the Marvels' Case and apportioned the fines arrived at in that way amongst the appellants. In respect of the Trade Descriptions Ordinance Offence, she imposed a fine of $15,000.

3. Mr. Fenton for the appellants relies on two main grounds of appeal in attacking the severity of the sentences. His first ground is that the magistrate did not properly take into account the pleas of guilty and lack of any similar previous convictions on the part of the appellants. In her reasons for sentence, the learned magistrate does say that she did take account of those matters. Mr. Fenton, however, submitted that she could not have done so because otherwise she would not have arrived at a fine which still represented 40% of the value of the goods which is the guideline established by the Marvels' Case. In the Marvels' Case, the court of appeal was dealing with an application for review. The court said that a guideline of 40% of the value of the goods would represent the appropriate fine, but then went on to impose fines which were considerably less than 40% of the value o the goods.

    de Basto J., in two appeals heard earlier this year, namely the Queen v. Usian Fashion Manufacturing Ltd. Mag. App. 740 of [1989], and the Queen v. Chow Chi-wai Mag. App. 741 of [1989] expressed the view that the court of appeal in Marvels' Case "no doubt passed a lower sentence than it would have determined had it not been an Application for Review by the Attorney-General".

4. Nevertheless in both those appeals, de Basto J., himself reduced the fines imposed in those two cases so as to make them represent 33% of the value of the goods involved. He went on to say, however, that the figure should not be taken as precedent, but he did not mention why he did reduce the fines to that figure, although he did say that he was influenced by the Marvels' Case to use a figure below 40%.

5. Mr. Fenton submits that in doing so he was acting in accordance with recognised sentencing principles, namely that the guideline laid down by the court of appeal was meant to apply to cases where there is a conviction after trial in respect of a person with no previous convictions, that is, a guideline to be applied to a person found guilty after trial taking into account no other mitigating factor than lack of a criminal record.

6. Mr. Hartmann for the respondent does not take issue with this submission and I accept that Mr. Fenton has made out a case in respect of the fines imposed for the Import and Export Ordinance Offences.

7. Before the learned magistrate, Mr. Fenton made a submission that the fines ought to have been of the order 33 1/3% of the value of the goods. The magistrate in her Statement of Findings makes reference to this and indicates that, were not for the fact that Mr. Fenton gave no authority for making his proposition, she may well have acceded to it.

8. If the learned magistrate had been in the same position as I am, namely, having had the submissions which have been made by Mr. Fenton this morning, she may well have acceded to his request. In any event, I think that in a case such as this where there has been a plea of guilty at the earliest possible moment a proper discount should be given. The appropriate fines in this case for the Import and Export Ordinance Offences bearing in mind the guidelines in Marvels'Case should have been fines of the order of 30% of the value of the goods.

9. I propose, therefore, to allow the appeal to the extent that the original fines will be quashed and in lieu thereof. I will impose fines representing 30% of the value of the goods, apportioning them amongst to the particular appellants using the same method as the learned magistrate.

10. As regards the second ground of appeal, it does seem to me that a fine of $15,000 taking into account the fact that the false description had been applied to goods in respect of which a false declaration had been mace were the subject of convictions under the Import and Export Ordinance.

11. The false description was a label "Made in Hong Kong". The appellants had arranged for the particular goods to be manufactured in China. After their manufacture, the appellants placed labels declaring "Made in Hong Kong" on the garments and then shipped them overseas. That conduct amounted in my view to an exacerbation of the false declaration offences. I think that it was quite appropriate for the magistrate to impose a fine in relation to this offence.

12. The fine does appear to be on the high side but I find myself unable to say that it was either wrong in principle or so manifestly excessive that I could justify any interference with it.

As to the other fines I allow the appeal, set aside the penalties imposed and substitute the fines set out in Annexure "A"