HKSAR v. Collamar Eliza Turla

HCMA1027/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1027 OF 2008

(ON APPEAL FROM TWCC 2253 OF 2008)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  13 January 2009

Date of Judgment:  13 January 2009

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J U D G M E N T

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1.This is an appeal against two sentences of concurrent imprisonment each of  8 months which were passed in respect of offences contrary to the Trades Description Ordinance Cap.362. 

2.Charge 1 related to 12 mobile telephones each of which bore the false trade description, "Nokia Connecting People".  Charge 2 related to two mobile phone charges, two mobile phone batteries and one hand free all of which bore the forged trade mark "Nokia". 

3.The appellant was a lady who was a small trader who had run a moderately successful business.  She had a stall at a trade fair.  It was the Electronics and Components China Sourcing Fair which was held at Asia World Expo at Tung Chung.  A customs officer approached her stall and pretended to be a customer and purchased a mobile telephone which had the trade description "Nokia Connecting People" attached to it for $1,000.  Having done that the stall was searched and the items I have already referred to in both the charges were found. 

4.I mention it was the case, because it featured in the submissions made on this appeal, that there were two further charges relating to a retail outlet in Central.  In respect of those no evidence was offered against this appellant although an employee at that retail outlet did plead guilty to offences there under the Trades Description Ordinance.  He received a short suspended sentence.

5.The Magistrate took a starting-point of 12 months' imprisonment for this lady and applied the one-third discount.  In particular he judged it a grave aggravation that this happened at a trade fair, an international trade fair, and therefore damaged the reputation of Hong Kong.

6.In my view, 12 months is too high a starting-point.  The main goods in question are in the 1st charge.  There were only 12 items there and the value of the goods in question totally was only some $12,500.

7.What the evidence revealed is that the appellant had clearly gone to some effort in order to create and package a product which sought to benefit from using Nokia's name.  Obviously she only falls to be sentenced for the matters to which she pleaded guilty.  The only relevance of the other matters which indicated involvement beyond the immediate was that it stopped a potential avenue of mitigation on the basis that this was an isolated offence.  That mitigation is not available on the facts although the submission is well founded which makes the point that she can only be dealt with for that to which she has pleaded guilty.

8.The lady had a clear record and there is a background report that tells me about her and she was clearly doing quite well in her business. 

9.Mr Beel has submitted that this should never have been a custodial sentence.  In my judgment, looking at the cases, immediate custody is justified.  If you source and create a mobile phone package and put it in a box with the accessories and the like and seek to sell that to the public, and invoke Nokia's name when it is not a Nokia phone, you reveal some fairly sophisticated criminal enterprise.  And if, in fact, you do that and get away with a suspended sentence or a fine then, in effect, there are no teeth to the legislation that criminalizes the conduct and protects Nokia.  Put bluntly, traders in the position of this appellant are much more likely to take the chance if they think they can get away with it without going to prison. 

10.Having decided though it is a custodial sentence, on a plea of guilty, in my judgment a 3 month sentence on Charge 1 is adequate.  It does not need to be any longer and in my view should not have been any longer in view of the value involved.  So what I shall do is allow the appeal on Charge 1 and substitute there for the 8 months' sentence a sentence of 3 months' imprisonment.

11.On Charge 2 the material there was less extensive.  I shall impose a sentence of one month's imprisonment and I shall make it concurrent for obvious reasons.  If Charge 2 had stood merely by itself it would not have attracted an immediate custodial sentence. 

12.So the total sentence is one of 3 months which means, given the time this lady has spent in custody, that she will have her liberty today as far as this court is concerned.  I am told there may be immigration issues but they do not bite on the length of proper sentence here and what happens to her today in relation to separate immigration matters is not within my control.

Representations:

Mr Tam Sze-lok, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Trevor Beel, instructed by Director of Legal Aid for the Appellant