HKSAR v. Lai Wing Hung and Others

HCMA1111/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1111 OF 2005

(ON APPEAL FROM KCCC 13684 OF 2004)

---------------------

BETWEEN

----------------------

Before : Hon McMahon J in Court

Date of Hearing : 24 August 2006

Date of Ruling : 24 August 2006

--------------------

R U L I N G

--------------------

1.This is an application for the return of goods, being 6,500 car radio cassettes, seized by the Customs and Excise Department as they were to be exported to Egypt.  The car radio cassettes had a brand name attached to them spelt “Pionear”.

2.The present applicants before me are directors of the exporting company which was the 4^th defendant at trial and which became the 4^th appellant at the subsequent appeal.  They were themselves the 1^st and 2^nd defendants and appellants respectively in the trial and the appeal.

History of the case

3.At the original trial in Kowloon City Magistracy before Mr McNair, the applicants and their company and various other defendants were acquitted of an offence contrary to section 7(1)(a)(ii) of the Trade Descriptions Ordinance.  Subsequently Mr McNair reviewed himself and convicted all defendants at trial, including the applicants, of the offence.  The matter came before me on appeal and the appeal was successful in respect of all the original defendants for the simple reason that the magistrate had not given proper reasons for the reversal of the original acquittal and substitution of a conviction upon review.

4.The applicants today simply seek the return of the 6,500 car radio cassettes following their forfeiture by the magistrate upon the applicants and the other defendants’ eventual conviction by him.  The reasons advanced by Mr Lai Wing Hung, the 1^st appellant, who appears on behalf of the 4^th appellant, and who appears with the 2^nd appellant before me as the applicants in respect of this application, are that the car radio cassettes should be returned because of the quashing of all of the original defendants’ convictions upon appeal.  He asks now that the magistrate’s order for forfeiture also be set aside.

5.In my view, contrary to what is being urged upon me by Mr Lai, the 6,500 radio cassettes with the word “Pionear” attached to them are plainly deceptive in their description.  That is particularly so as they were intended for export to Egypt.  That is a country which is not an English speaking country by any stretch of the imagination and in my view, had those radio cassettes arrived in that country, they would have been easily mistaken for the genuine, albeit a cheap version of the genuine model.  I think it would be quite wrong if the court were to allow the release of these radio cassettes in those circumstances.  I might add that the eventual finding of the magistrate upon review was that the radio cassettes brand description was in fact objectively deceptive and his finding in that regard was apparently made irrespective of the fact that the goods were to be exported to Egypt.

6.I must say that that is also a finding I agree with.  I think it would be quite wrong for the goods to be returned to any of the applicants or other appellants when there would be a real risk that they would eventually find their way back into some sort of market somewhere, even if that market was not Hong Kong.

7.Accordingly the application for the setting aside of the magistrate’s order of forfeiture is refused.

Mr Richard Ma, GC, of Department of Justice, for HKSAR

The 1^st Appellant, in person

The 4^th Appellant, represented by the 2^nd Appellant, in person