HKSAR v. Ho Wai Ki, Edith

HCMA 248/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 248 OF 2017

(ON APPEAL FROM ESCC NO 290 OF 2017)

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J U D G M E N T

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1.This is an appeal against conviction. On 20 April 2017, the appellant was convicted after trial by Deputy Magistrate, Winston Leung, of a single charge of selling goods to which a forged trademark was applied, contrary to section 9(2) as read with section 18(1) of the Trade Descriptions Ordinance, Cap 362. She was fined $10,000.

2.The appellant admitted selling a “Chanel” ladies handbag on a website called “Carousell” for the amount of $850.  A customs officer posed as a buyer of the handbag and made an appointment to meet the defendant to purchase the bag.  The customs officer met the appellant on the concourse of North Point MTR station where the appellant gave the handbag to the customs officer upon receiving $850 from him.  The appellant was arrested and cautioned.  She said she bought the handbag as a gift for her younger cousin who did not like it so she resold it.  She admitted that she bought and sold the handbag on the website where she had an account. She was asked whether the handbag was genuine or counterfeit and she responded by saying “I knew that it was highly imitated.  That was what the seller told me.”  When she was asked what did “highly imitated” mean, she said “Forged, maybe.” 

3.There was a challenge as to the admissibility of the caution statement by the appellant.  The Magistrate was satisfied that it was made voluntarily and admitted it into evidence.  I see no reason to intervene with the Magistrate’s determination on the admissibility of the appellant’s caution statement. 

4.There was also an issue before the Magistrate about what the appellant had said in Chinese and meant by the handbag being “high imitation”, and the injection of the qualification that it was “forged, maybe.”  The Magistrate found after consideration of the relevant evidence that the appellant had failed to raise the defence under section 26AAB.  

5.It was an admitted fact that the two statements of the expert be admitted under section 65B of the Criminal Procedure Ordinance, Cap 221.  It was also an admitted fact that the expertise of the expert was not challenged and that her statements referred to an examination of the handbag which was contained in a dust bag, the subject of the charge.  An issue was taken at trial as to the content and the finding of the expert in her statements which the Magistrate nevertheless accepted. The Magistrate was satisfied to the requisite standard that the handbag in question was counterfeit, bearing a forged trademark of Chanel.  He was also satisfied having considered all the evidence that the defendant did sell the handbag with the forged trademark of Chanel applied to it. 

6.There are three grounds of appeal.  Ground 1 is that the Magistrate erred in law and in fact in finding that the prosecution had proven that the handbag was counterfeit and bore a forged trademark.  Ground 2 is that the Magistrate wrongly took judicial notice of certain facts unsupported by evidence.  Ground 3 is that the Magistrate did not conduct the trial fairly and impartially.  Quite rightly, the third ground was withdrawn. 

7.The second ground concerns the Magistrate’s comments where he said that websites were a notorious place for trading in forged goods; that the Chanel brand was well known for its expensive prices; and that “high imitation” was a euphemistic term for high class forgery. 

8.In light of the fact that this is a rehearing of the case, it is open to this Court to reconsider the matter and determine whether the evidence supports a conviction for the offence by the appellant to the requisite standard of proof. 

9.I do not see that the comments attributed to the Magistrate undermined, or rendered inappropriate, the evaluation of the evidence by him in his statement of findings.  The comment about websites was a general one and did not have any significant bearing on his decision.  The comment about the price of Chanel products being expensive is common knowledge.  As to this matter, the Magistrate was entitled to consider the price difference between a genuine handbag priced at $28,000 and the handbag in question priced at $850.  The expert in her statement noted that $28,000 was the retail price of a genuine product.  The expression “high imitation” was a statement made by the appellant which the Magistrate was required to evaluate and address in his statement of findings.  It would seem to me that if someone describes an item as “high imitation”, they are indicating that the item is a very good imitation of the original. 

10.I do not find that the Magistrate’s comments were in any material way inappropriate and there is no substance to this ground of appeal.

11.Ground 1 was the main thrust of the appellant’s appeal.  Mr Ian Polson, counsel for the appellant, submitted that the expert’s opinion, even though admitted pursuant to section 65B of the Criminal Procedure Ordinance, was a bare assertion with insufficient or inadequate explanation for the finding or of the methodology used to arrive at the finding by the expert.  He cites the case of HKSAR v Singleton Paul Chung Mun, HCMA 254/2019, 17 December 2010, where at paragraph 14 the case of R v Yeung Kwok Fai [1996] 2 HKCLR 32 was applied and followed.  The principle relied upon is that an expert should furnish the court with the necessary criteria for testing the accuracy of their conclusion so as to enable the court to form its own independent judgment by the application of this criteria to the facts proved in evidence. 

12.Mr Bobby Cheung, counsel for the prosecution, seeks to distinguish the case of Yeung Kwok Fai by noting that in that case the expert’s evidence simply stated that he had examined a Rolex watch on one occasion which he found to be genuine, and on another occasion found it to be partly fake.  There was no evidence as to how he came to such a conclusion, or which parts of the watch were fake. 

13.I should point out that the appellant did not give or call evidence on the special or general issues. The Magistrate accepted the prosecution evidence, including the evidence of the expert, and accordingly found that the appellant had sold a counterfeit Chanel handbag to the undercover customs officer. 

14.I have reviewed the evidence and see no basis to interfere with the appellant’s conviction for selling goods to which a forged trademark was applied. 

15.Mr Polson’s primary challenge in this appeal was the acceptance of the expert evidence by the Magistrate.  As I have already noted, the expert evidence was admitted under section 65B of the Criminal Procedure Ordinance by way of an admitted fact. Section 65B permits a written statement by a person to be admissible “as evidence to the like extent as oral evidence to the like effect by that person”.  It is also provided under section 65B(6) that any object or document referred to as an exhibit and identified in the written statement shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement. 

16.The expert’s expertise was not challenged and this was confirmed by way of admitted fact.  The expert is an employee of Chanel Limited who has supervisory responsibilities for merchandising Chanel products and quality control operations.  She has been specifically authorised to handle counterfeit of fashion products for Chanel.  She has stated that she had examined the handbag and dust bag and noted the trademarks that were on them.  She has stated that after careful examination, she confirmed that the product was counterfeit because of poor workmanship and inferior material.  She attached four photographs of the bag as part of her statement.  She also attached relevant records of the Chanel trademark.  She has obviously carried out a physical examination of the handbag in arriving at her conclusion. 

17.Mr Polson takes issue with the expert’s evidence on the basis that it is a bare assertion without explaining how the workmanship was poor and how the material was inferior.  As noted, the statement of the expert was admitted into evidence by having her statement read out in open court and therefore was not the subject of cross-examination.  Whilst the expert could have explained in greater detail the lack of quality of the handbag in arriving at her conclusion, it is the case that she is familiar with Chanel products and its quality, and has identified by the poor workmanship and inferior material that it is not one of their products. 

18.I am satisfied on the basis of the evidence before the Magistrate, including the admission the appellant made at the time of her arrest that this was a “highly imitated” handbag, the nature and circumstances of the transaction, the price difference between the genuine handbag and the handbag sold by the appellant, and the expert evidence that this was not a genuine Chanel handbag, that this supports to the requisite standard the conviction in question.

19.The appeal is therefore dismissed. 

Mr Bobby Cheung, SPP of Department of Justice, for the respondent

Mr Ian Polson, instructed by Henry Lam & Associates, for the appellant