Choi Ying Tak v. The Queen
|
CACC001130/1978
----------------- Coram: Li, J. in Court Date of Judgment: 3 January 1979 ----------------- JUDGMENT ----------------- 1. This is an appeal against convictions and sentence of two charges brought under Section 3(2) of the Merchandise Marks Ordinance. The grounds of appeal are that:-
2. The facts are relatively simple. The Appellant is the sole proprietor of two shops both named the Fuji Jewellery Co., - one in 25 Lock Road the other at 15 Sun Wui Road in Hong Kong. A raid was carried out on 30th November, 1977. A total of 64 scarves of Lanvin brand were taken from the two shops respectively. From one shop 30 of these were taken and from the other 34. These 64 scarves were examined at the Department of Commerce & Industry premises by a Monsieur Maurellet who is the managing director of the Franco Asiatic Co., Ltd., - the sole agent and distributor of Lanvin scarves in Hong Kong. He found 18 to be of such quality, workmanship and material that they were not genuine Lanvin scarves. These 18 scarves were detained and the balance of 46 scarves were returned to the Appellant. The 18 scarves formed the subject matter of the two charges - 4 in relation to one shop and 14 relating to the other where they were found. The defence in the Court below was that the Appellant started business in 1974/75 and ever since the commencement of his business the Appellant always traded with and obtained supply of Lanvin scarves from the Franco Asiatic Co., Ltd., up to 15th November, 1977. On 16th November, 1977 the Appellant purchased 13 pieces of Lanvin scarves from a man by the name of CHAN Chi Kwan. He did not know whether CHAN Chi Kwan was from the Franco Asiatic Co., Ltd., or not. CHAN Chi Kwan represented to him that the scarves were Lanvin scarves. He examined them and found them to be of a new pattern, new design and that they were from Lanvin, Paris. Thus, he purchased them. Having paid for them he asked CHAN Chi Kwan for his name and address. That was on 16th November. When the raids were carried out in the Appellant's premises both in Lock Road and in Sun Wui Road 13 pieces of scarves so purchased from CHAN were amongst the 64 pieces seized. The Appellant also gave evidence that the 13 scarves which were seized had all been returned to him by the Commerce & Industry Department as genuine Lanvin scarves. The implication in his evidence is that what was detained by the Commerce & Industry Department namely, the 18 scarves which were the scarves which formed the subject matter of two charges were in fact goods supplied to the Appellant from the Franco Asiatic Co., Ltd. The 13 pieces obtained from CHAN which had been seized in the first instance had all been returned to him amongst the 46 pieces found to be genuine Lanvin scarves. 3. Monsieur Maurellet gave evidence as to the reason why he said the 18 pieces of detained scarves to which a trade name had been applied to it namely, Lanvin, Paris were not genuine Lanvin scarves. He based his findings and his opinion in this respect on his examination of these 18 pieces. He gave his reasons in Court. There is no necessity to repeat them in detail. Suffice it to say that he found that of the 18 pieces of scarves some were of had workmanship, some had the name of Lanvin printed in a way which showed poor application of the trade name 'LANVIN'. He found that some of the cotton scarves had printed labels instead of woven labels. Lastly he found that the majority of the 18 scarves were of poorer or rougher quality than the genuine Lanvin scarves. On these factors the learned magistrate ruled at page 8 of his Statement of Findings to the effect that there was no evidence that any of the 18 scarves the subject matter of these proceedings were amongst the 209 scarves purchased from Franco Asiatic Co., Ltd. He also found that there was no doubt in his mind that:-
4. Pausing at this stage one cannot help feeling that the learned magistrate, with due respect, have come to a wrong conclusion. My first comment is that although he said there was no evidence that the subject matter of the charge were amongst the scarves purchased from Franco Asiatic Co., Ltd., yet the implication in the evidence of defence was that the 18 pieces so retained by the Department of Commerce & Industry were supplied by Franco Asiatic Co., Ltd., the sole agent of Lanvin scarves in Hong Kong. Thus it is wrong to say that there was no evidence that the 18 scarves were amongst the 209 scarves supplied from Franco Asiatic Co., Ltd. The defence evidence on this point was never challenged nor was Monsieur Maurellet in a position to disown the 18 pieces of scarves by saying that they did not come from Franco Asiatic Co., Ltd. Admittedly Mr. Maurellet said that when he obtained supply from Paris he would have them checked by his three trained staff subject to his supervision and that when his staff had doubt they would go to him for consultation. But there is no direct evidence to say that these 18 pieces of scarves did not come from Franco Asiatic Co., Ltd. The magistrate further found that:-
5. That being so, the two different statements in his findings are self contradictory. Either there was or there was no such evidence. The learned magistrate then went on to say that there was no evidence that the Appellant had taken all reasonable precautions against committing an offence against the Ordinance. I do not think that there was any evidence of his having taken any precaution. On the Appellant's own admission he had bought 13 scarves from CHAN Chi Kwan bearing the Lanvin trade mark well knowing that the sole agents and the distributors were Franco Asiatic Co., Ltd., and that it was unknown whether CHAN Chi Kwan had any right or authority to sell those scarves. The fact that they turned out to be genuine is, to my mind, irrelevant. What is relevant in my view is the fact that the Appellant was prepared to buy Lanvin scarves from sources other than the sole agent and distributor. That appears to be the only reason why the learned magistrate proceeded to conviction was the folly on the part of the Appellant who bought the 13 scarves from one CHAN Chi Kwan. However, there was evidence that the 13 scarves purchased from CHAN Chi Kwan had been returned to the Appellant as genuine. That should have nothing to do with the charge at all. What has to do with the charge was whether the 18 scarves were false. 6. Having heard the evidence of Monsieur Maurellet the learned magistrate came to the conclusion that they were all false. An argument has been addressed to that Court on a point whether the learned magistrate should have accepted the evidence of Mr. Maurellet as an expert witness. I have read the Statement of Findings. I do not see why the learned Magistrate should not take into consideration of Mr. Maurellet's experience in his trade, in examining scarves from time to time and having to supervise his staff to examine the scarves to find him competent to give evidence as to what is the normal standard of a Lanvin scarf and what it not. That is beside the point. The point is that from the defence evidence they purchased from only two sources. One from Franco Asiatic Co., Ltd., the other from CHAN Chi Kwan. All the scarves purchased from CHAN Chi Kwan had been proved in evidence to be genuine and not challenged. The Appellant was in a position to adduce evidence that in the course of years of dealings with Franco Asiatic Co., Ltd., he had purchased a total 209 scarves from the said company. There is no evidence that the Appellant had purchased any extra scarf apart from the 209 from Franco Asiatic Co., Ltd., and a total of 13 from CHAN Chi Kwan. Thus the 18 pieces of scarves, in whatever state they might be, had come from Franco Asiatic Co., Ltd. If that was the case the Appellant apparently purchased the scarves had taken a reasonable precaution because he obtained them from the sole agent of Hong Kong. There is no other evidence that he has obtained other scarves of Lanvin brand from any other source. 7. I cannot subscribe to the statement that the fact that the 13 pieces of scarves turned out to be genuine was completely irrelevant. It is indeed, relevant. If the 13 scarves had been mixed with those supplied by Franco Asiatic Co., Ltd., then it would be quite correctly said that the Appellant had not taken reasonable precaution. Here is a man who, on evidence, obtained supply from the sole agent of Lanvin in Paris. Such 18 of those scarves out of 209 were found to be imperfect. Monsieur Maurellet in his evidence had already said that even when he obtained supply from Paris he had to check the quality to find whether there was any defect. One may assume that there could be defects in the goods even though they came direct from the manufacturing house. There could have been a slack in quality control in the premises of the manufacturer. There could have been a slip of checking by Monsieur Maurellet's own trained staff. These are not only possibilities and in these days of manufacturing process when mass production for the purposes of trade are done. These can be probabilities. Otherwise Monsieur Maurellet would not have had his staff to check them. 8. In view of the foregoing and having reviewed the evidence as a whole, I cannot safely say that the conviction is safe and satisfactory in the circumstances. For these reasons, I would allow the appeal and quash both convictions. In the circumstances, the appeal against sentence does not arise.
Representation: Mr. A.J.J. Sanguinetti (H.H. Lau & Co.,) for Appellant Mr. T.M. Gall, c.c. for Respondent |