HKSAR v. Mohammed, Rubel Howlader

HCMA 279/2025

[2025] HKCFI 5687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 279 OF 2025

(ON APPEAL FROM KCCC 1982 OF 2025)

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BETWEEN

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J U D G M E N T

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Background

1.The Appellant pleaded guilty to a charge of “selling goods to which a forged trade mark was applied” (“Charge 1”)  contrary to section 9(2)  as read with section 18(1)  of the Trade Descriptions Ordinance, Cap. 362 (the “Ordinance”)  and a charge of “possession of goods for sale or for any purpose of trade or manufacture goods to which a forged trade mark was applied” (“Charge 2”), contrary to the same section of the Ordinance.  Upon his guilty plea, the Magistrate sentenced him to 2 months’ imprisonment for Charge 1 and 6 months’ imprisonment for Charge 2, both sentences to run concurrently with each other, making a total of 6 months’ imprisonment.  The Appellant now appeals against his sentence.

Facts

2.The Appellant admitted the following facts.

3.On 5 August 2024, a decoy agent (“PW1”)  was approached by the Appellant near Tsim Sha Tsui MTR station.  The Appellant asked PW1 if he wanted to buy branded products and copy watches.  The Appellant then led PW1 to a flat nearby (the “Premises”).  Inside the Premises, the Appellant invited PW1 to walk around and asked if he was interested in buying anything else.  They ended up with a transaction of a Louis Vuitton bag and a Rolex watch with the amount of $3,500.

4.Police officers then intercepted the Appellant when he left the Premises.  Police conducted a search of the Premises and found 118 items with forged trade marks.  The Appellant was the one who rented the Premises and signed the tenancy agreement.

Mitigation

5.Miss Li, Duty Lawyer, represented the Appellant in the court below. She submitted that the Appellant is 46 years of age, married with a son aged 3.  Prior to arrest, the Appellant was a Keeta courier earning $20,000 a month. The Appellant committed the present offences because he needed money to pay his mortgage and to support the living of his family. 

Reasons for Sentence

6.The Magistrate noted that the Appellant was not a first offender.  He had a previous conviction for a similar offence i.e. sell / expose / possession for sale or for any purpose of trade or manufacture any goods to which forged trade mark is applied (August 2006)  for which he was sentenced to 2 months’ imprisonment. 

7.The Magistrate said, :-

“8. The Appellant rented the premises mainly for storing goods with forged trade descriptions, I also took into account that the Appellant was in possession of 118 pieces of goods to which forged trade marks were applied, that there were as many as 10 trade marks involved and the total seizure value is $416,000. The Appellant was not a first offender either, having one previous conviction of similar nature. I am of the view that the size of the operation could not be regarded as small.

9. Having considered the mitigation of the Defence and the facts of the case, an immediate custodial sentence to be the only appropriate sentence in the circumstances. For charge 1, taking a starting point of 3 months, discounted that by a third for the Appellant’s guilty plea, and sentenced the Appellant to 2 months imprisonment. For charge 2, taking a starting point of 9 months, discounted that by a third for the Appellant’s guilty plea, and sentenced the Appellant to 6 months imprisonment.  Charge 1 and charge 2 should run concurrently, therefore, the total imprisonment is 6 months imprisonment.”

Grounds for Appeal

8.In his prisoner submission dated 7 August 2025, the Appellant stated that the sentence was too severe and his family could not survive without him as he was the sole bread winner of the family.  He has to take care of his wife and his son, and to pay mortgage and other living expenses.  He repeated what he said in his handwritten letter dated 15 September 2025. 

9.In today’s hearing, the Appellant says that he has 10 more days in prison and asks if it is possible for him to be discharged.  He says his wife, a housewife, and his son depend on him financially. Besides, he needs to send money to his aged parents to support their living in Bangladesh.

The Respondent’s submissions

10.Mr Wong representing the Respondent submits that:

(a)  for a repeat offender an immediate custodial sentence may have to be seriously considered: SJ v Lam Chi Wah [1999] 4 HKC 343.

(b)  a starting of 6 months’ imprisonment was adopted in HKSAR v Chau Hung Ying HCMA 838/2009 in which the appellant possessed 123 pieces of clothing with forged trade marks with a total value of $45,700.

(c)  in HKSAR v Melwani, Manish Vashdev HCMA 228/2005, Deputy Judge Barnes (as she then was)  considered that the appellant’s role was a substantial broker and the scale of his operation was closer to that of a wholesaler than a street hawker. She considered that a starting point of 6 months for a first offender was appropriate.

11.The Respondent further submits that the Appellant rented the Premises to run a business of selling counterfeits and he was a repeat offender.  The value of the seized goods was significant and much higher than the case of Melwani.  The sentence imposed on the Appellant was therefore neither manifestly excessive nor wrong in principle.

Consideration

12.Section 18(1)  of the Ordinance provides that any person who commits an offence under section 9 shall be liable on summary conviction to a fine at level 6 and to imprisonment for 2 years.

13.For the offence relating to selling of goods in contrary to the provisions in the Ordinance, the Court of Appeal in SJ v Lam Chi Wah [1] took the view that they are akin to offences under the Copyright Ordinance.  Without setting any guideline in sentencing, the Court made the following observations:

a.  the sale of counterfeit goods as genuine ones and at the prices of genuine goods  would seem to be more serious than the sale of counterfeit goods at much low prices not as genuine goods but as counterfeits;

b.  selling of counterfeit goods on a wholesale basis is generally more serious than selling by hawkers or traders on a retail basis;

c.  for hawkers and small traders of counterfeit goods, heavy fines, not necessarily be linked to the value of the goods, might be imposed in future;

d.  for a repeat offender, an immediate custodial sentence  may have to be seriously considered; and

e.  for wholesalers, they would have to face prison terms unless there are special circumstances and for this purpose financial difficulties and a clear record would unlikely be regarded as special circumstances.

14.In the present case, the facts to which the Appellant admitted, show:

(i)  there were a total of 118 items of goods, a quantity which could not be considered to be small;

(ii)  there were 3 different types of counterfeit goods i.e., bags, wallets and watches;

(iii)  the counterfeit goods were of different famous brands  e.g. Burberry, Gucci, LV, Prada, Hermes, Chanel, Patek Phillippe, Rolex, Tag Heuer etc.;

(iv)  the total seizure value was large i.e. $416,500, the potential loss to the trade mark owner was substantial; and

(v)  given the above (quantity / type / nature of the counterfeit goods), the size of the operation could not be regarded as small.

15.Besides, the Appellant was found to be in a district frequented by tourists.

16.The Magistrate has properly taken into account the abovesaid matters in deciding the nature and level of sentence.  He also bore in mind that the Appellant is a repeat offender.  The Appellant was sentenced to serve a prison term of 2 months in 2006 for a similar offence. 

17.I have considered all the circumstances of the case and the submissions made by the Appellant. By way of rehearing (see: HKSAR v Hui Lai Ki [2024] HKCFA 7), I consider that the starting point adopted for each charge is appropriate.

18.The Appellant said that he is the sole bread winner of his family. However, he must have taken this into account before he committed the present offences.  In HKSAR v Li Kwok Ching[2], Deputy Judge Barnes (as she then was)  said: - 

“Family hardship which is usually attendant upon the conviction is to be viewed as part of the price an accused must pay for the crime”:

19.Apart from the Appellant’s guilty plea, there is no other mitigating factor which justifies a further reduction of sentence.

20.The sentence imposed on each charge and the ultimate sentence was neither manifestly excessive nor wrong in principle. In the circumstances, I dismiss the Appellant’s appeal against sentence.

Mr Wong Sin Fai Ryan, PP of Department of Justice, for the Respondent

The Appellant appeared in person