THE QUEEN v. WONG YAN-CHUEN

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J U D G M E N T

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Macdougall, J:

1. The applicant was convicted by His Honour Judge Leonard in the District Court of an offence against section 7(1)(a)(i) of the Trade Descriptions Ordinance of procuring in the course of trade the application of a false trade description namely, "Mineral Water" to a total of 18,012 bottles of various sizes containing ordinary tap water.

2. At the trial the prosecution led uncontested evidence that in July 1986 the applicant, who was a director of Million Source Co. Ltd., had attended the factory premises of a company named Uniasia Ltd. and had informed a Mr. Ho, the Managing Director and majority shareholder of Uniasia, that his bottling machinery had broken down and would be out of operation for two or three months. In fact, the machinery had not broken down but had been sealed in the presence of the applicant by an inspector from the Department of Customs and Excise.

3. The applicant led Mr. Ho to understand that he was the owner, spokesman or major shareholder of Million Source Co. Ltd., and requested him to manufacture mineral water for him. It was agreed that Mr. Ho would charge $35 per carton for the mineral water and that the applicant would both pay the duty chargeable on the water and supply the containers for it.

4. Mr. Ho, whose company had previously produced mineral water by injecting a mixture of minerals into ordinary tap water, informed the applicant that he still had stocks of these minerals and offered to use them in the water to be supplied to the applicant. However, the applicant this proposal on the ground that the minerals would spoil the taste of the water instead, he requested Mr. Ho merely to filter and sterilize tap water and bottle it for him.

5. There was further uncontested evidence that the applicant had had plastic bottles manufactured and had affixed to there labels on which were printed the words "Health" and Mineral Water". These bottles were delivered to Uniasia Ltd. and were there filled with filtered and sterilized tap water on the 19th July and the 11th and 12th August as requested by the applicant.

6. Counsel who represented the applicant in the court below prepared and had filed four grounds of appeal the appellant, who is now unrepresented, adopted these grounds and sought to supplement them by addressing us on what he would have said that he elected to testify at the trial. In the light of his failure to present his defendant from the witness box before the judge we are not now disposed to consider his version of the facts.

7. There is considerable overlap in the four grounds of appeal that have been filed. First, it is contended that the judge failed to warn himself that: Mr. Ho was an accomplice and that it would be dangerous to convict the applicant on his uncorroborated testimony. In our view, this is mere clutching at straws. In his reasons for verdict the judge clearly stated that he had no doubt that Mr. Ho had a purpose of his own to serve and that accordingly he gave himself the usual accomplice warning. It is now incumbent, on a judge to set out in his reasons the precise words of the warning he administered to himself in the circumstances we think it entirely unrealistic to assume that the judge failed to direct himself properly on this matters

8. The applicant also contends that there was no evidence either that anyone had committd or had admitted having committed the offence or that the bottles of mineral water referred to in the particulars of offence were not in accordance with the description stated. Thus the applicant complained that the judge had erred in holding that he had procured the commission of the offence. An extension of this contention was that there was no evidence that the alleged false description had been applied in the course of business or that the applicant had the necessary mens rea.

9. Leaving aside for one moment the question of whether the description on the bottles of tap water was a false trade description within the meaning of section 2 of the Ordinance, we are entirely satisfied on the basis of the uncontested evidence and the testimony of Mr. Ho, supported by that of a co-director, Ms. Wong, that there was ample material from which the judge could properly conclude that the offence had been committed.

10. Section 92 of the Interpretation and General Clauses Ordinance (Cape 1) provides :

"Any person who aids, abets, counsels or procures the commission by any other person of any offence shall be guilty of the like offence."

11. The relevant part of section 6 of the Trade Descriptions Ordinance provides :

"6. (1) A person applies a trade description or trade mark or mark to goods if he -

(a) affixes or annexes it to or in any manner marks it on or incorporates it with -

    (i) the goods themselves; or

    (ii) anything in, on or with which the goods are supplied;

(b) places the goods in, on or with anything which the trade description or trade mark or mark has been affixed or annexed to, marked on or incorporated with, or places any such thing with the goods;"

12. "Trade description" is defined in section 2 of the Ordinance. The relevant part of the definition provides that the expression means "an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say

(a) quantity (which includes length, width; height, area, volume, capacity, weight and number), size or gauge;

(b) method of manufacture; production, processing or reconditioning;

(c) composition;"

13. The judge found that the trade description "mineral water" applied to the filtered and sterilised tap water in the bottles. On the basis of the prosecution evidence, which the judge accepted, the conclusion is inescapable that the applicant had procured the application of the trade description "mineral waiver" to the bottles of tap waters. Having so concluded, the judge then turned to a consideration of whether the trade description was false.

14. Although a government chemist had testified that various products marketed in Hong Kong as "mineral water" each contained higher levels of one or more minerals than does tap water, the judge concluded that as tap water contains minerals, and as the content of the bottles was water which contained minerals, the prosecution had failed to establish that the description "mineral water" was in scientific terms a false description of those contents,

15. He then turned to the definition of "false trade description" in section 2 of the Ordinance. This includes "a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of "trade description" as would be false to a material degree."

16. Having considered this definition, the judge found that, as an obvious matter of common sense, a member of the public entering a shop and seeing a bottle marked "mineral water" would expect it to contain something more than mere tap water, and that a prospective purchaser would understand that the product so labelled was, in terms of composition, richer than tap water in the mineral content. Accordingly the trade description "mineral water" when applied to bottled tap water is misleading in that it is likely to be taken as an indication, false to a material degree, of the composition of the contents of the bottle. We entirely agree.

17. Finally, as to the contention that there was no evidence that the application of the false description had been in the course of trade or business, we think that in view of the quantity of the goods involved, the testimony of Mr. Ho, and the expense necessarily incurred by the applicant in having the bottles manufactured and the labels printed, the judge was entirely justified in finding that the false trade description had been applied in the course of a trade or business.

18. For these reasons we are of the opinion that there is no merit in this application. It is therefore dismissed.