R. v. HUI MING SANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 549 OF 1996

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J U D G M E N T

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1. The Appellant, who was the proprietor of Cheong Ming Medicine, pleaded guilty before a magistrate to three charges of possession for the purpose of manufacture goods to which a forged trade mark is applied, contrary to s. 9(2) of the Trade Descriptions Ordinance, Cap. 362 (Charges A, C, D) and two charges of possession for the purpose of trade goods to which a forged trade mark is applied, also contrary to s. 9(2) of the same ordinance (Charges B, E). He was sentenced to concurrent sentences totalling six months and fines of $40,000.00. He appeals against sentence.

2. The agreed facts were that in the morning of 8 August 1994, customs officers saw the Appellant leaving Unit 16, 5th floor of the Kenning Industrial Building at No. 19 Wang Hoi Road, Kowloon Bay and going into Unit 5 on the 9th floor of the same building. The officers suspected that counterfeit medicine was manufactured and stored in these premises and entered both units. The Appellant was found working in Unit 5 and in the same unit the officers found a large number of boxes to which forged "Leung Chai Sze" trade mark had been applied. Inside Unit 16, customs officer found a number of items bearing forged "Leung Chai Sze" trade mark, 26,400 bottles of counterfeit "Leung Chai Sze" 'Sea Dog' pills and 375 boxes bearing a forged "Trumpet" trade mark.

3. The Appellant was arrested and under caution he told the officers that he had another workshop in Po Hung Centre. He was escorted to Unit 9 on the 9th floor in Po Hung Centre, No. 2 Wang Tung Street, Kowloon Bay. A search was conducted and the premises were found to be a place for manufacturing and storage of counterfeit "Trumpet" brand Seirogan pills and counterfeit "Leung Chai Sze" 'Sea Dog' pills.

4. The Appellant admitted under caution that he was the proprietor of Cheong Ming Medicine and he knew that all the seized items were counterfeit medicine. The total value of the counterfeit medicine was $325,000.00.

5. In his Reasons for Sentence, the magistrate rightly took a serious view of these offences. He noted that this was a large scale counterfeiting activity which operated in three units in two industrial or commercial buildings. It was submitted before me by Mr. Plowman, Q.C. on behalf of the Appellants that the offences did not attract sentences of immediate custodial imprisonment. He referred to the decisions in R. v. Tele-Art Ltd. Mag. Appeal No. 1121 of 1986 (false trade descriptions applied to watches); R. v. Tam Sho-lam [1988] 2 HKLR 586 (ladies' dresses) and R. v. Lau Wai-kin [1992] 1 HKCLR 10 (forged trade mark of 'Rolex' and other brand names applied to watches). But in R. v. Ng Wen Chien Mag. Appeal No. 257 of 1987, Garcia J. upheld an immediate custodial sentence of four months' imprisonment imposed on the Appellant who pleaded guilty to six charges of possession for the purpose of trade and manufacture goods to which forged trade marks were applied and another six charges of possession of instruments for the purpose of forging the trade marks. It was the latter six charges which attracted the longer sentence of four months while the sentence imposed on the first six charges was only one month to be served concurrently. The forged trade marks were applied to rice and detergents sold locally, all of which were popular brands. The judge considered that as the goods contained in the bags with the forged trade marks were necessities of life, it would affect a large number of the population in Hong Kong.

6. I agree with the magistrate that the facts and circumstances in this case fully justify a custodial sentence. But having regard to the Appellant's clear record, his pleas of guilty, his ready co-operation with customs officers and the fact that the pills do not contain toxic substances, I take the view that the interest of justice would be served by suspending the sentence. Accordingly, I allow the appeal to the extent that the overall sentence of imprisonment of six months will be suspended for a period of two years. The fines remain undisturbed.