The Queen v. Choi Ka-lok

HCMA001319/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1319 OF 1990

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BETWEEN

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Coram: Hon. Bewley J. in Court

Date of hearing: 23 November 1990

Date of delivery of judgment: 7 December 1990

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JUDGMENT

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1. The appellant was convicted by Mr Venning in Fanling Magistrates Court of importing goods to which a false trade description was applied, contrary to Section 12(l) of the Trade Descriptions Ordinance, Cap.362.

2. The goods were consigned to Energtic Limited, a Hong Kong company, of which the appellant was one of three directors. It was admitted that he was the person responsible for their importation. The goods were intended to be sold by the company and there was no suggestion that the appellant was acting in a personal capacity.

Section 20 of the Ordinance reads :-

"20. Where a body corporate is convicted of an offence under this Ordinance, every person who, at the time of. the commission of the offence, was a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge, or that he exercised all due diligence to prevent the commission of the offence."

3. The company was not prosecuted, but would almost certainly have been convicted if it had been prosecuted. Mr Buchanan, for the appellant, submits that, the company being the importer and the appellant the company's agent, the appellant himself cannot be guilty of the offence.

4. This overlooks the definition of "imports" in S.2 : "to bring, or cause to be brought, into Hong Kong". There is nothing in the ordinance to indicate that the existence of S.20 rules out the prosecution of a director under S.12. S.20 just makes it easier to secure the conviction of both the company and a director. Indeed S.12 provides a very similar defence to that available to a director under S.20. Had that not existed I might have been persuaded to take a different view on the grounds that a director ran a greater risk of conviction under S.12 than under S.20.

5. However, as it is, he is in no wise disadvantaged by a S.12 prosecution. There is no doubt that the appellant, albeit as an agent of the company, caused the goods to be imported. He was therefore properly convicted.

6. The appeal is dismissed.

Representation:

Mr Patrick Li, Crown Counsel, for Respondent.

Mr R. Buchanan, instructed by M/s. Paul Kwong & Co., for Appellant.