Man Keung Wong v. Chuen Cheong Hong

CACC000027/1947

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 27 OF 1947

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Coram: Mr. Justice T.J. Gould - President, Mr. Justice J. Reynolds - Appeal Judge

Date of Judgment: 12 February 1948

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JUDGMENT

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1. This is an appeal by way of case stated from the decision of a magistrate dismissing a summons under section 3(2) of the Merchandise Marks Ordinance, 1890, alleging that the defendant had in his possession for sale certain tins of saccharin to which a false description was applied. On the argument as addressed to this Court, the only question in issue was whether the respondent had proved, at the hearing, that he had taken all reasonable precautions against committing the offence, as provided by section 3(2)(a). Whether or not it is established that such precautions have been taken is a question of fact to be decided in the circumstances of each particular case but the burden of proof thereof is placed upon the defendant by the last mentioned subsection. The case stated contains no finding of fact that such reasonable precautions on the part of the respondent had been proved but the following paragraph appears in the reasons given for the magistrate's decision:- "(a) the respondent at the time of committing the offence had no reason to suspect the genuineness of the trade description. The appellant should be entitled to expect that the S.T. & I. would only deal in genuine goods". The second of these two sentences presumably refers to the first and appears to give the magistrate's reason for stating that the respondent had no reason to suspect the genuineness of the trade description. This is entirely different from holding that the respondent had taken "all reasonable precautions", and the absence of any finding as to the latter in the case stated shows that the respondent did not discharge in full the burden of proof cast upon him by the relevant subsection. It follows that in the normal course the appeal would necessarily be allowed. The case stated is however defectively drawn, containing no findings of fact as such, but a series of statements of evidence given before the magistrate which the Court was asked to treat as findings of fact. In the circumstances the Court, exercising its power under section 112 of the Magistrates Ordinance, 1932, looked at the notes of evidence to ascertain whether it might not be necessary in the interests of justice to send the case stated back to the magistrate for amendment. A perusal of the notes touching the point in issue in this appeal, however, discloses no material on which the magistrate would be justified in amending the case stated in any way which could affect the outcome.

2. The appeal is therefore allowed and the case remitted to the magistrate to enter a conviction and impose such penalty as he may think fit. The conviction will relate only to the four full tins of saccharine to which the appeal was confined.

3. The Court thinks it proper to add that in the preparation of a case stated magistrates should follow, in every case where it is possible, the form prescribed by the Magistrates Ordinance, 1932, particularly where it provides for enumeration of the facts proved, admitted or introduced by consent. Where the parties are legally represented, the magistrate would be wise in most cases to adopt a practice followed in other parts of the Empire and accept the assistance of the solicitors for the parties in the preparation of the case. This practice eliminates unnecessary applications for amendment and tends to ensure that the case provides a satisfactory basis for argument. Costs to be taxed and to be paid by the Respondent.