The Queen v. Tele-art Limited

HCMA001121/1986

BETWEEN:

Coram: Roberts, C.J.

Date: 21st November, 1986.

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JUDGMENT

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1. Tele-Art Limited pleaded guilty to two charges of importing watches to which a false trade description had been applied.

2. In the first charge, it was alleged that 360 watches had been imported into Hong Kong by the defendant bearing the false trade description "HONG KONG", on 18th January, 1986.

3. In the second charge, it was said that on 26th November, 1985, 405 quartz watches were imported into Hong Kong by the defendant, bearing the false trade description "SWISS".

4. The magistrate imposed a fine of $5,000 on the first charge and $25,000 on the second.

5. It was submitted on behalf of the defendant that these fines were manifestly excessive, in view of a tariff which had been prescribed by this court in A.G. v. Eagles Eye (Hong Kong) Ltd.¹. That case was concerned with the import of a quantity of clothing to which the label "Made in Hong Kong" had been applied, in order to evade a prohibition imposed by the U.S.A. Government on the the import into the U.S.A. of cotton corduroy goods from China.

6. After reviewing previous authorities on the subject, this court suggested that in future, for offences of that kind, a figure of 40% of the value of the goods should be taken.

7. The existence of this tariff was drawn to the attention of the magistrate who, however, took the view that the tariff was not intended to apply to those who had previously been guilty of a similar offence. He therefore imposed fines that are substantially in excess of the tariff.

8. The circumstances of Eagles Eye differed from those of this case in that, in Eagles Eye it was thought proper to impose substantial fines because of the damage which a false trade description would cause to Hong Kong's relationship with a major trading partner. In this instance, purchasers in Hong Kong should be protected from buying articles which are, by reason of the false description, not what they are paying for.

9. I do not think that the different circumstances are such that it is necessary to try and devise a separate tariff for false trade descriptions applied for different purposes and I am therefore content to follow the tariff which was prescribed by this court in Eagles Eye.

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10. On that basis, taking 40% of the value of the goods concerned in these two charges, which was contained in the statement of facts put before the magistrate, a proper fine would have been 40% of $5,40% on the first charge and 40% of $26,700 on the second charge. However, the suggested 40% is not intended to be more than a guide and I see no reason why a magistrate should not impose a somewhat higher amount when bearing in mind the record of a defendant. In this case there had been a previous conviction of D.1 for a similar offence.

11. Giving weight to this, I would have imposed on D.1 fines at the rate of 50% of the assessed market value of the goods concerned. I accordingly allow the appeal against sentence, quash the fines of $5,000 and $25,000 and substitute therefor fines of $2,700 and $13,350 respectively on the two charges.

¹    A.R. NO. 8/84

Representation:

Mr. A. Wong (Joseph C.T. Lee & Co.) for Appellant.

Mr. A.A. Bruce, Senior Crown Counsel, for Crown.