The Queen v. Tang Kang Kwong
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HCMA000726/1988 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) MAGISTRACY APPEAL HO. 726/88 ______________ BETWEEN
___________ Coram: The lion. Mr. Justice Barnes in Court Date of Hearing: 14 September 1988 Date of Delivery of Judgment: 14 September 1988 _______________ J U D G M E N T _______________ 1. The Appellant was convicted in the Magistrate's Court on his own plea of guilty on five charges of offences, contrary to the Trades Description Ordinance. Four related to the possession ofgoods to which either a forged trade mark or a false, description had been applied and one to possession of a die for the purpose of forging a trade mark. 2. He was fined the sum of $3,000 on each charge and also ordered to be imprisoned for four months. The learned Magistrate ordered that the sentences of imprisonment be served concurrently and further ordered that each be suspended for a period of two years. 3. The Appellant appeals against the sentences and Mr. Loughran in support of the appeal has relied on several submissions to support the contention that the sentences are excessive. He submits that the traditional method of dealing with such offences has been to impose a fine in order to deter offenders and that a suspended sentence is out of line with comparable cases in the past. He has been able to obtain details of sentences in thirty-three cases and has pointed out that in thirty-one fines were imposed, in one an immediate custodial sentences was imposed and in the other a suspended sentence. 4. In this case, the Magistrate saw the seriousness of the offence the manufacturing activity in which the Appellant was engaged. During the hearing itself, the Magistrate when giving his reasons said this:
In the thirty-three cases to which Mr. Loughran referred me, it was not known from the details which he had available to him if any of them involved manufacture. The remark made by the Magistrate who sits in North Kowloon Magistracy, where a large number these are dealt with, has said that most of the time the manufacturer is not caught so it would appear that the most of the sentences in the thirty-three not be manufacturing cases. 5. Mr. Loughran submitted that that there was no distinction to be drawn for the purposes of the sentence between a manufacturer and a retailer. 6. I do not agree. I accept the approach which was adopted by the Magistrate that if this type of conduct is to be deterred, then there is a need for a stronger deterrent at the source namely the manufacturer then there is further along the chain of distribution. 7. I also agree with the learned Magistrate when he says that ]long Kong cannot afford to be seen as a centre for the manufacture and sale of cheap fakes. That observation, I think, takes care of another submission by Hr. Loughran, namely, that in this case the fake articles were being sold at such a low price that they could not possibly deceive the public into believing that they were the much more expensive genuine article. 8. It was submitted in mitigation that the Appellant carried on the manufacturing process in small factory premises of barely over 100 square feet The learned Magistrate, however, was of the view that the Appellant was not a small term operator. The matters to which the learned Magistrate referred in considering the appropriate sentence were in my view relevant matters which make his decision to impose suspended sentences in this case a correct one. I find myself completely unable to say that the` sentences were either wrong in principle or excessive. 9. I, accordingly, dismiss the appeal.
Representation: Mr. J. Abbott S.C.C. for the Crown, Mr. P. Loughran instructed by Kenneth K. C. Wong & Co. for Appellant. |