The Queen v. Lau Wai Kin

HCMA000442/1991

IN THE SUPREME COURT OF APPEAL

Appellate Jurisdiction

MAGISTRACY CRIMINAL APPEAL NO. 442 OF 1991

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Coram: Hon. Penlington, J.A. (sitting as an additional High Court Judge) in Court

Date of hearing: 3 September 1991

Date of handing down judgment: 17 September 1991

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JUDGMENT

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1. This is an appeal against sentence following conviction by Mr. A.F.H. Crawshaw the South Kowloon Magistrate's Court on the 28th of March of this year.

2. The appellant was convicted of three charges to which he pleaded guilty. The first charge was possession for sale of goods to which a forged trade mark had been applied contrary to s. 9 (2) of the Trade Descriptions Ordinance, Cap. 362. Particulars of this offence were that at a mobile store at 42 Temple Street, Yaumatei, he had 34 watches to which a forged trade mark "Rolex" was applied, 15 watches to which a forged trade mark "Gucci" was applied 1 watch to which forged, trade mark "Tudor" was applied and watches to which a forged trade mark "Cartier" was applied.

3. The second charge was very similar and indeed it is not easy to see why it was brought as a separate charge. This was also possession for sale of goods to which a forged trade mark had been applied pursuant to the same section. In this charge the appellant was alleged to have had at the same time and place 4 watches to which a false trade mark "Chanel", 6 watches with the trade description "Hermes" and 7 watches with the false trade mark "Dunhill".

4. The third charge was the possession for sale of goods to which a mark so nearly resembling a trade mark as to be calculated to deceive was falsely applied. Again this charge related to the 6th of July at a store at 42 Temple Street, Yaumatei, and the goods comprised 3 watches to which a mark "Corum" had been applied and 18 watches to which a mark "must de Cartier" had been applied.

5. There was an agreed statement of facts which set out that on the 6th July 1990, during an anti-counterfeit goods operation in Temple Street night bazaar, the appellant was seen manning a mobile stall outside 42 Temple Street with a folding table on which photographs of prestigious watches with a price label was displayed to potential customers. At 1945 hours the appellant was seen to leave the stall and to return with a travelling bag which was then searched. As a result the various watches mentioned in the three charges were found inside the bag. The appellant was cautioned and admitted ownership of the items which had been seized and he stated that he realised that they were counterfeit watches.

6. The trial magistrate, Mr. Anthony Crawshaw, imposed a fine in respect of the first charge of $58,000 in default four months imprisonment, in respect of the second charge a fine of 518,000 in default one month's imprisonment and in respect of the third charge $22,000 in default one month's imprisonment.

7. The appellant has previous convictions going back to 1974 for possession of offensive weapons, membership of a triad society, wounding and robbery. He has no convictions similar to the subject of this appeal.

8. The trial magistrate in his reasons for sentence said that the circumstance of this case re-inforced his long experience of cases of this nature and he was of the view that hawkers such as the appellant were well capitalised and that it was an extremely lucrative trade. He considered that the multipliers he had used of three-and-a-half to four times the value of the watches was necessary in the light of the rampant and open trade in fake watches conducted in Temple Street virtually every night.

9. It is the main ground of appeal that the trial magistrate has not followed the guidelines as to sentence laid down by the Court of Appeal in Attorney General v. Eagle Eye (HK) Ltd. (1987) HKLR 839. There it was held that in offences involving trade descriptions fines should be in the vicinity of 40% of the value of the goods. In my view, however, that case is very different to the one now before the Court. It was a case involving export of goods stated to be made in Hong Kong which were in fact manufactured in China. That is very different to the facts here where we have the open sale of fake watches bearing very well known and expensive brand names. Although probably anybody who purchases such a watch in Temple Street would have little expectation that it was in fact the genuine article nevertheless the owners of these trade marks are entitled to protection and I agree with the trial magistrate that this can only be done by the imposition of fines which will have some effect on-stopping this trade. It does seem that themagistrate has used his own knowledge of what goes on in Temple Street in coming to the level of fine that he has imposed. However in doubt he has had many such cases coming before him and I see no reason why he should hot use his own knowledge of the prevalence of this type of offence in assessing the proper penalty.

10. I was referred to my own decision in R. v. Wong Kam Ming MCA 95 of 1990 where a young defendant had been fined over $100,000 for similar offences. There however the magistrate, who was also Mr. Crawshaw, imposed fines which he himself said he did not consider the defendant would be able to pay. For that reason and because of his age, the fines were reduced to a sum which he would be able to pay. Here although it was a ground of appeal that there was no evidence that this appellant could pay the fines imposed that has not been argued and indeed the fines were paid immediately.

11. These were undoubedly very severe fines. They were well above the guidelines which had been laid down but here I have no doubt the facts of the case were considerably different to the other cases to which I have been referred. These were fines imposed by a very experienced magistrate who without any doubt has a considerable knowledge of the prevalence of this type of offence. These were blatant offences of the selling of fake copies of very famous international products the originals of which command very high prices indeed. The magistrate was of the view that fines of this magnitude are required if any impression is to be made in stopping this traffic. I do not consider that, taking these factors into account, it can be said that these fines were manifestly successive so as to justify this Court's intervention. The appeals against sentence are accordingly dismissed.

Representation:

Miss Valerie Lim (Sammy s. Li & Co.) for Appellant

Mr. G.E. Forlin, Counsel for Crown