Mei Ya Magnetic Tapes Co. Ltd v. The Queen

CACC001113/1976

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1113 OF 1976

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Coram: Li, J.

Date of Judgment: 8th November, 1976

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JUDGMENT

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1. This is an appeal against sentence imposed upon a corporation. The appellant was incorporated some time in November last year. On the 30th of December, last year, a large quantity of cassette tapes were found in the appellant's possession bearing various types of false trade marks or false trade descriptions. There were seven different types of false trade descriptions and false trade marks. As a result seven summonses were issued against the appellant and the appellant was convicted in respect of each and every one of the seven summonses. There is no doubt that the appellant company was incorporated to carry on an illegal trade of selling forged trade marks and false trade descriptions. For the first summons, a fine of $50,000 was awarded which is the maximum allowed in the provision of paragraph (a), sub-section (3) of section 3 of the Trade Merchandise Marks Ordinance. For the second summons which involved only 10 tapes, a $1,000 fine was awarded. In the third summons which involved 960 "Philips" cassette tapes, a fine of $20,000 fine was awarded. In the fourth summons, in respect of 160 BASF tapes, a $20,000 fine was imposed. In the fifth summons in which 200 TDK cassette tapes were involved, a $20,000 fine again was awarded. In the sixth summons involving 2,520 "Hitachi" cassette tapes, a $25,000 fine was imposed and in the seventh summons, in which 2,120 Sony cassette tapes were found, another $25,000 fine was imposed, making a totality of $161,000.

2. In his findings and reasons for the sentence, the learned magistrate took into consideration as follows, because he said: "Previous company was directed by the female defendant's husband. After the seizure an effort was made to register a business name identical to that of the aggrieved company in this case which was the informer. It would appear that this female defendant which was selected for the front line of an expected battle and I suppose had little choice in her future. I can't see that this entitles her to ask the court to impose a moderate fine for offences of this nature, previous conviction of others and the heavy fine imposed in those cases have received wide publicity. She owns 50,000 shares in the defendant company (which is the appellant company)."

3. I find that it is wrong in principle to go behind the veil of the corporation in a case like this and have the offences of the female director's husband influence the consideration of the learned magistrate. If the corporation was formed and was convicted of this - this is the corporation's first conviction and in this connection although she has not appealed, the lady director was also summoned with the identical summonses and had been separately fined. She has not appealed against sentence herself. It is only the corporation that has appealed. Be that as it may I cannot see how the court should be influenced by whatever offences that had previously been committed by her husband.

4. Mr. WOO for the appellant argued on the basis that there is a great disparity of sentences because the lady director of the appellant company who was similarly convicted of all these summonses was given a comparatively moderate fine of something like 46,000 dollars in total, whereas the corporation is fined 161,000 dollars in total in respect of the identical offences. I don't think there is any merit in this point to compare the fines as imposed on the corporation with the fines that had been imposed on the company's director. If she was fined a mere total of 46,000 dollars she is fortunate in the sense that she has not been imposed a heavier fine.

5. Secondly, Mr. WOO's argument goes on to say that there is a great disparity of the fines in respect of individual summonses. He goes on to analyse it as if the fine should be in the form of a certain rate per cassette tape. I don't feel that that is the proper way to impose a sentence. A fine has nothing to do with the commercial value of the tapes. I have to consider whether for the first conviction of the company what fine should be appropriate. I find that by and large the maximum fine is on the heavy side and accordingly, I would allow the appeal to the extent that in respect of the first summons, a fine of 30,000 dollars should be sufficient. For the second summons, a fine of a thousand dollars is appropriate because they are of the same type of false description. The third summons I reduce the fine to 10,000 dollars. The fourth summons I reduce the fine to 10,000 dollars. The fifth summons I reduce the fine to 10,000 dollars. The sixth summons I reduce it to 15,000 dollars and the seventh summons to 15,000 dollars, thereby making a grand total of 91,000 dollars, In so doing I don't for one moment regard these offences as light offences. They are serious offences affecting the trade of the Colony. However, I give consideration to the fact that all these tapes with forged trade marks and false descriptions were seized on one occasion and they were, in fact, seized in bulk. Obviously they were of six different brands and all the various companies were affected. It does not, however, detract from the fact that there is only, in fact, one act of possession of a variety of offensive articles. I allow the appeal to that extent because one, I consider it as the first offence and secondly, I consider that this variety of articles were seized upon one occasion and there was one act of possession as such. Of course, the Crown is entitled to proceed on the basis that there were seven different possessions and seven different types of offensive articles. As far as the sentence is concerned, it should reflect upon the fact that there is one act of possession. Accordingly the appeal is allowed to the extent as I have indicated and the totality of fine would be 91,000 dollars.

6. The Crown has made in the court below an application for costs of the prosecution and also that the informer be paid a proportion of the fine imposed. Naturally the prosecution cost the victim company quite a lot of money. As the learned magistrate has failed to make an order or has not made an order on the application, I under the provisions of the Magistrate's Ordinance have the same power to rectify the position. The fine should be appropriate to the offence but the cost of the prosecution will compensate the informer as to the expenses incurred in launching the prosecution. Accordingly, I order that the appellant in addition should also pay the cost of the prosecution the court below and such costs to be taxed by the registrar. I also order that as to the fines 50 per cent should be paid to the informer in accordance with the provisions of the Merchandise Marks Ordinance.

Representation: