Pang Kwai Lam v. The Queen

CACC000274/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 274 OF 1973

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Coram: Cons, J.

Date of Judgment: 26th May 1973.

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JUDGMENT

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1. The Appellant in this case is said to be a watch repairer. It appears from the agreed facts that he was, to a certain extent, also a dealer in watches. He was at one time a seaman but had to give up that occupation due to an injury that he sustained. The watches in which he dealt were not genuine, in the sense that they appear to be cheap watches that had stamped upon them the registered marks of well-known and well-respected firms selling expensive watches. Unfortunately for the Appellant, some of his watches were stolen by a small boy and the arrest of the small boy led eventually to his own uncovering. He was found to have approximately 2,000 watches of the kind that I have just mentioned in his possession together with a certain number of watch bracelets. He was charged with six separate offences under the Merchandise Marks Ordinance. He is aged 30 and has not been convicted before of any similar or any other kind of offence. The Magistrate imposed a sentence of twelve months' imprisonment for each of the six charges, the sentences to run concurrently, thus making a total of twelve months. Against that sentence, he now appeals.

2. Two matters are put forward in his favour. Firstly, it is said that imprisonment for this kind of offence is certainly unusual if, in fact, it ever has been imposed at all. Secondly, it is said that he was unfairly treated in comparison with two other persons who were arrested at the same time.

3. Let me deal with the second point first. It is obvious from the facts which have been admitted and from the inferences which may fairly be drawn from those facts that the Appellant was in a very different position from the two men who came to visit him at the time that the police were there. As regards them at least he was the centre-pin of the trade. Whatever might have been his position with regard to others with whom he himself dealt, it is clear he played a much larger part in the business than those particular two and it is proper there be a considerable difference in the sentences meted out. I can see no excessive disparity.

4. The first point taken is that imprisonment, as far as it is known to counsel, has never been imposed for this kind of offence. My experience is the same as far as this exact offence is concerned; but I can recall instances where imprisonment without the option has been imposed in cases not exactly the same but nevertheless having a commercial flavour. The Magistrate based his decision to impose imprisonment upon what he considered to be the immeasurable damage that conduct of this kind could do to the reputation of the Colony. In a community such as this, which depends to such an extent upon its export trade, that is a very real consideration which should and must be taken into account and if it had been the case, upon the facts, that the reputation of this Colony might have suffered I would have had no hesitation in agreeing that a prison sentence was the proper one. But it seems to me that the learned Magistrate misunderstend the position. This is not a case where the watches were openly distributed or exported from Hong Kong or where they bore upon themselves some indication that Hong Kong was their origin. Moreover I am told that the Appellant's immediate customers were all persons who made their profit by way of evasion of customs duties in other countries rather than by way of legitimate trade, so that it is unlikely that the eventual purchasers would ever be aware of the part played by Hong Kong or would set much store upon it if they were.

5. In these circumstances, and with very great respect to the learned Magistrate, I think he has exercised his mind upon a wrong principle and that the sentences should be amended by the substitution of fines, as is the usual practice.

[At this juncture counsel addressed the Court with regard to the level of the fines that should be imposed]

6. Court: The value of the goods involved is a matter that must be taken into account, but I do not think that assessment of the fines can be reduced to a mathmatical science, or should be based upon that value alone. The Appellant was carrying on a airly substantial business at the expense of the honest traders of this Colony and elsewhere. I think his conduct should be met by a ine on each charge of $3,000 or one month's imprisonment in default, sentences of imprisonment to be consecutive if they are server. In assessing the amount due allowance will naturally be made for the time that the defendant has already spent in prison. The sentence of the Magistrate is amended accordingly.

Representation:

Patrick Woo (Bernard Wong & Co.) for Appellant.

A.M. Niamatullah for Grown/Respondent.