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HCMA000120/1996
| IN THE HIGH COURT |
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1996, No. 120 |
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Magistracy Appeal |
| BETWEEN |
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THE QUEEN |
Respondent |
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and |
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CHONG WAH SANG (D1) |
1st Appellant |
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YEUNG CHUN MING (D2) |
2nd Appellant |
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Coram: Hon Mayo JA sitting as an additional High Court Judge
Date of hearing: 30 August 1996
Date of judgment: 30 August 1996
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JUDGMENT
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Mayo JA:
1. The appellants are partners in a firm trading as Nam Cheong Hong. They were both charged pursuant to s12 of the Trade Descriptions Ordinance Cap 362 with importing goods with a false trade description. Two similar summons were served on both men with annexes giving particulars of the Trade names which had allegedly falsely been given to the imported goods. The goods in question were scarves and the Trade names were the names of well-known fashion houses.
2. The relevant facts are relatively simple. Nam Cheong had a trading relationship with a firm in South Korea which supplied them with goods as and when they were ordered. A consignment of goods arrived from South Korea by air and was inspected by officials of the Customs and Excise Department.
3. The goods the subject of the charges were discovered. Al was invited to attend at the airport and make a statement if he wished to do so. He availed himself of this opportunity. A statement of facts which was signed by the prosecution and counsel representing the defendants at the trial recorded various agreed facts. It reads as follows:
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"At about 0930hrs. on 9.9.1994, PW1 conducted examination on a consignment of necktie and scarf in the presence of the forwarding staff (PW2). The subject consignment was imported from Korea under Airway Bill, P8. As a result of the examination, PW1 discovered 730 counterfeit scarves (P1 to P7) amongst necktie within the said consignment. P1 to P8 were thus seized and handed over to officers of Intellectual Property Investigation Bureau for further investigation. |
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2. According to P8, the subject shipment was consigned to Nam Cheong Hong situated at First Floor, Block D, 88 Nathan Road, Kowloon. At about 1100hrs. on the same day, CHONG Wah-sang (D1) turned up at the scene and claiming the subject shipment was consigned to Nam Cheong Hong. D1 was thus cautioned and arrested, and later brought back to Customs office for enquiry. On the other hand, PW6 & PW7 proceeded to Nam Cheong Hong where P10 which was in relation to the said shipment was voluntarily produced by D2. |
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3. At a later stage, PW10 to PW16 conducted examination on P1 to P7 respectively and confirmed those to be counterfeit products." |
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4. A1 made statements to the Customs and Excise Officers conducting the investigation. The gist of the explanation tendered to this official was that business between his firm and the Korean supplier was conducted on a most informal basis. So far as the present order was concerned it had been made over the telephone. Al denied that he had ordered the scarves in question and surmised that some mistake must have been made by the Korean supplier and that they must have inadvertently included the scarves in the consignment.
5. Section 12 of Cap 362 is couched in these terms.
"12. Prohibited import and export of certain goods
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(1) Subject to section 13, no person shall import or export any goods to which a false trade description or forged trade mark, which expression shall be construed in accordance with section 9(3), is applied. |
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(2) Any person who imports or exports any goods contrary to subsection (1) commits an offence unless he proves that - |
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(a) |
he did not know, had no reason to suspect and could not with reasonable diligence have found out that the goods are goods to which a false trade description or forged trade mark is applied; or |
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(b) |
the goods are not intended for trade or business. |
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(3) |
This section shall not apply to any goods in transit." |
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6. It was accordingly necessary for the learned magistrate to consider whether the explanation which had been furnished by A1 satisfied him that Nam Cheong Hong had not with reasonable diligence been aware of the existence of the offending items.
7. In his statement of findings the magistrate deals with all the relevant circumstances and he gives reasons why he rejected the evidence of A1 who at the trial ran his defence along the lines which I have above indicated.
8. It appears to be accepted that the learned magistrate did make an error when he referred to the quantity of goods involved. In fact the value of the ties was $200,000.
9. It is still in my view a not insubstantial quantity and it would seem strange that more formal documentation was not adopted.
10. Having regard to the size of the order and the informality claimed it is not surprising that the magistrate was satisfied at the appropriate level that these offences had been committed.
11. A2 did not give evidence at the trial.
12. In the grounds of appeal which lie before me counsel for the appellant mainly focuses her attention upon the fax which was referred to in the statement of findings and the point is made that as the contents of the fax was hearsay the evidence should not have been adduced to the court. A further criticism is made that the magistrate appears in his findings to have been influenced by the fact that he disbelieved Al's evidence to the effect that when he attended at the airport he had been unaware of the existence of the said fax.
13. This does not in my view take matters any further. At best the fax was peripheral to the matters which were under consideration.
14. An explanation was required for the presence of the offending goods. For the reasons given the magistrate was fully justified to take the view of the matter he did.
15. These convictions were in no way unsafe or unsatisfactory and these appeals must be dismissed. I so order.
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(Simon Mayo) |
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Justice of Appeal |
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sitting as an additional High Court Judge |
Representation:
Mr Richard Turnbull for Crown Prosecutor
Ms Tracy Chan (Maurice Lee, Tsang, Ng-Quinn & Tang) for appellants
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