HKSAR v. Fong Kit Ying

HCMA 371/2017

[2018] HKCFI 529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 371 OF 2017

(ON APPEAL FROM KTCC 4795 OF 2016)

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J U D G M E N T

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1.The appellant (D2 at trial), jointly charged with a co-defendant (D1 at trial), was convicted after trial of one charge of “Possession for sale or for any purpose of trade or manufacture goods to which a forged trademark was applied”.[1] The appellant now appeals against her conviction.

2.The appellant was represented by Mr John Reading SC and Mr Victor Luk both at the trial and in the appeal hearing.

The prosecution case

3.The appellant was the person in charge of a shop situated in Kowloon Bay (“the Shop”).

4.On 16 February 2016, a customs officer (PW1) acted as a decoy in an anti-counterfeiting operation and made purchase from D1, the saleslady of the Shop.  PW1 revealed his identity and arrested D1.  Later, another customs officer (PW2) conducted a search in the Shop and found, among other goods, one Tommy Hilfiger jumper and one Prada coat inner lining.  The items, suspected to be counterfeit products, were seized.

5.Subsequently, the appellant arrived at the Shop. She admitted to be the person in charge of the Shop at the material time and she used the Shop for selling second-hand items.  She said some of the goods belonged to her and some belonged to her friends who placed the items there for sale.  As regards the items in question, she claimed that she did not know the authenticity of the goods as they were given to her as gifts.

6.D1 and the appellant were charged in respect of 4 items out of the goods seized from the Shop, items 3 and 4 being the Tommy Hilfiger jumper and the Prada coat inner lining.

7.The prosecution called three witnesses (PW5, 6 and 7) to give expert opinion evidence on the authenticity of the goods.  PW6 was the expert to give evidence in relation to the Prada coat inner lining.  The appellant challenged each of the experts’ expertise.

8.PW6 was the Executive of the Intellectual Property Department of Prada.  Before she joined Prada, she had also been a specialist in trademark.

9.PW6 testified that she received three to four full-day training from product experts from Italy on all details of Prada products when she commenced her employment with Prada.  She also received continuing training concerning seasonal products.  She said the training she received is applicable to both old and new products of Prada. 

10.PW6 had given expert evidence in court twice in Macau. She explained in court the reasons why she opined that the Prada item in the present case was a counterfeit.

The defence case

11.The defence was that the items in question were genuine goods.  The defence did not rely on the statutory defence.

12.The appellant elected not to give evidence.  She however called two witnesses: Madam Yau (DW2), and her son Mr Tso (DW3).  At the material time, the appellant was the girl friend of DW3.  They later married each other. DW2 is now the mother-in-law of the appellant. 

13.DW2 testified that she placed her unused clothes, including the jumper and inner lining in question, for sale in the Shop.  The money she received from the sale would be donated for charity purpose.  She produced some records of donation in support. 

14.The jumper and the coat inner lining, she confirmed, were genuine products.  She placed the two items in the Shop for sale.

15.She bought the jumper in question for her son (DW3) from a Tommy Hilfiger store in 2007.

16.As regards the coat inner lining, it was in fact the inner lining of an overcoat which she bought in a Prada shop at Central about 10 to 20 years ago.  The Prada overcoat and its inner lining were separable.  They were sold separately in the Shop so that they would be sold for more money for donation.  The overcoat had been sold.

17.DW2 produced a credit card statement to support her claim that the jumper was bought from a Tommy Hilfiger shop in December 2008.  She was unable to retrieve the bank record proving the purchase of the Prada coat due to the long lapse of time.  However she produced a photograph taken 20 years ago which depicted her wearing the Prada overcoat. 

18.DW3 testified that he went with DW2 to buy the Tommy Hilfiger jumper about 10 years ago.  He produced a photograph which depicted him wearing the jumper in around 2008.

Reasons for conviction

19.The magistrate found the evidence of the customs officers (PW1 to 4) “clear, prudent and straightforward”.  He found them credible and reliable witnesses and accepted their evidence.  The magistrate, however, acknowledged that their evidence could not assist the court as the key issue in the case was the authenticity of the goods.

20.The magistrate ruled that PW5 was not competent to give evidence as expert.  He therefore deleted items 1 and 2 from the charge, leaving item 3 - the “Tommy Hilfiger” jumper, and item 4 – the “Prada” coat inner lining, as the subject matters of the charge in the trial.

21.At the conclusion of the case, the magistrate further rejected the evidence of PW7 (the expert for Tommy Hilfiger) due to some technicality. He was not satisfied that the jumper was a counterfeit.

22.The magistrate however accepted the evidence of PW6 and found that the criticisms of the defence could not undermine the overall credibility and reliability of PW6.

23.The magistrate bore in mind that the prosecution must prove its case beyond reasonable doubt and the appellant had no burden of proof.  He also reminded himself that the appellant had a clear record and gave himself the Berrada direction.  He emphasized that he would not draw any adverse inference against the appellant for not giving evidence as it was her right.  The magistrate gave no weight to the exculpatory part of the appellant’s cautioned statement as it was not sworn under oath or tested under cross-examination.

24.The magistrate found DW2 a dishonest and unreliable witness, being evasive under cross-examination.  The magistrate rejected DW2’s evidence.

25.On the other hand, the magistrate found DW3’s evidence would not assist the court to determine the issue whether the coat inner lining was a counterfeit product.

26.Having considered all the evidence, the magistrate relied on the evidence of PW6 and found the coat inner lining a counterfeit product.  The appellant was convicted accordingly of the charge in respect of the coat inner lining.

The grounds of appeal

27.There are three grounds of appeal:

“1. The learned Magistrate erred in accepting that PW6 was qualified to give expert opinion evidence in respect of ALL Prada products, even those products that were manufactured 20 years ago.

2. The learned Magistrate erred in rejecting the evidence of DW2 that P5 was a genuine Prada product which had been purchased by her together with the coat which it lined, some 20 years ago and his reasons for concluding that she was a dishonest and unreliable witness were, with respect unconvincing and flawed.

3. That in all the circumstances, the conviction in this matter is unsafe and unsatisfactory.”

Discussion

Ground 1: the magistrate erred in accepting PW6’s evicence

28.The main ground of this appeal concerns the evidence of PW6, who was called as an expert in relation to products of Prada.

29.The complaint of Mr Reading SC is that, while PW6 might be qualified as an expert, she was not qualified to give evidence about Prada products which were produced 20 years ago.  Mr Reading SC submits that PW6’s qualifications, as an expert witness, were tenuous as she lacked the relevant academic qualifications and real practical experience in respect of Prada products.  Moreover, her answers in cross-examination demonstrated a lack of knowledge in respect of old Prada products.  As PW6 was employed by Prada as an Executive and Intellectual Property Officer only for 1 year and 10 months, and Prada products were vast in both variety and quantity with a history of over 100 years, it is doubtful whether PW6 had knowledge of every product in Prada’s long line of collections of clothing, in particular for those products that were manufactured 20 years ago.

30.In the appellant’s written skeleton submission, Mr Reading SC cited authorities referring to some general principles concerning expert witness.  The principles are well established and not in dispute.

31.It is also emphasised in counsel’s submission in court that PW6 has never given expert evidence in Hong Kong courts.  She could not tell whether the coat DW2 was wearing in the photograph produced by the appellant was or was not a Prada product.  She was also not sure how many times Prada had changed its labelling over the last 20 years.

32.With respect, I cannot agree with the submissions.

33.First, whether PW6 can be accepted as an expert by the court is not dependent solely upon her having given expert evidence and accepted in Hong Kong court.  Moreover, she has given evidence in this capacity in Macau courts.  There is no evidence that she was not accepted as an expert.

34.Whilst PW6 lacks academic and formal qualification, she has acquired the relevant skills in a proper training received from product experts from Italy and through her day-to-day job duties in Prada.

35.She worked in Prada as an intellectual property executive for 1 year and 10 months, and had previously been a specialist in trademark prior to joining Prada.

36.In Prada, her duties included examining and giving advice and evidence in respect of counterfeit Prada products and coordinating with various law enforcement agencies in the Asia Pacific region.

37.She also had opportunities to work with experts from other Prada group offices, including the quality control inspector of Prada and the manufacturers of Prada products, during which they exchanged information on methods of distinguishing Prada products from counterfeits.

38.Clearly, there was sufficient evidence for the magistrate to accept PW6 as an expert in the case.

39.With regard to her knowledge about Prada products over 20 years old, PW6 confirmed that the knowledge she acquired was applicable to old items of Prada. 

40.Although PW6 could not tell since when black labels had been used, she knew that specific stitching methods had been adopted ever since the black labels were used.

41.In my judgment, there was sufficient basis to support the magistrate’s finding that PW6 could give expert evidence in relation to the coat inner lining.

42.PW6 could give detailed analysis to explain why she opined the coat inner lining in question was a counterfeit, such as the inferiority of the logo, especially the letters and fonts of the capital letters “A” and “R” which were different from the genuine one as compared with the trademark records.  The stitching method of the black main label was also not complying with the standard stitching methods (in zigzag or by manual stitching at the four corners) which had been used since Prada started using the black main label.  Moreover, the care label was also smaller in size than the genuine one.

43.I find the reasons given by PW6 for her opinion simple, logical and convincing. 

44.The magistrate was aware that PW6 was unable to answer some of the questions posed by the appellant’s counsel during cross examination, eg, how long Prada had used the type of stitching on black label or care label, and was unable to judge whether the coat inner lining in question was a Prada product by her bare eyes.  With the criticisms of defence counsel in mind, the magistrate found that such criticisms could not affect the overall credibility and reliability of PW6. In my judgment, it was a view that the magistrate was fully entitled to take.

45.Ground 1 fails.

Ground 2: the magistrate erred in rejecting the evidence of DW2

46.Looking at the evidence of DW2 in the transcript, I would agree with the magistrate’s finding that DW2 was evasive under cross-examination.  Her evidence that she did not know who was in charge of the Shop was inconceivable when the appellant was the girlfriend of her son at the material time.  Her evidence about entering the vacant unlocked shop herself to hang her clothes, keeping no record of the 100 items being given for sale, was unconvincing.  Her collection of money from the cash box in the Shop from time to time without prior arrangement or authorization is, if not inherently improbable as Mr Kuan describes, against any commercial or common sense.  In my judgment, there was sufficient basis to support the magistrate’s finding that DW2 was a “dishonest and unreliable witness”.

47.The credit card statement showing the purchase at Tommy Hilfiger was neither here nor there.  It only proved the particular transaction shown in the statement and did not prove the purchase of the jumper in question.  The magistrate was entitled not to attach any weight to this piece of evidence.

48.Mr Reading SC also complains that the magistrate did not refer to the evidence of DW3 in his Statement of Findings at all.

49.The magistrate indeed evaluated the evidence of DW3 at paragraph 92 of the Statement of Findings.  The magistrate found that the photo bore no obvious correlation to the jumper in question.  The magistrate, in any case, found DW3’s evidence could not assist the court to decide whether the Prada inner lining was a counterfeit product.

50.In my judgment, the magistrate’s reasoning was not flawed.

51.This ground of appeal must also fail.

Ground 3: the conviction is unsafe and unsatisfactory

52.I have considered the evidence presented at trial and the issues before the magistrate.  I am satisfied that the magistrate fairly and properly considered the issues raised by the appellant. The magistrate was not “plainly wrong” in his finding as to credibility of PW6 and DW2.  I find no basis to interfere with the magistrate’s verdict.  The conviction is neither unsafe nor unsatisfactory.

Conclusion

53.For the reasons given, the appeal against conviction is therefore dismissed.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Mr John Reading SC and Mr Victor Luk, instructed by Rowdget W Young & Co, for the appellant