HKSAR v. Chau Hung Ying

HCMA838/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 838 OF 2009

(ON APPEAL FROM ESCC 4545 OF 2009)

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Before : Hon McMahon J in Court

Date of Hearing : 11 February 2010

Date of Judgment : 1 March 2010

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J U D G M E N T

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1.This is an appeal against sentence.  The appellant was convicted on her own plea of an offence of possessing, for sale trade or manufacture, goods to which a forged trade mark was applied, contrary to sections 9(2) and 18(1) of the Trade Descriptions Ordinance, Cap. 362.  The goods involved were various coats, shirts, dresses and scarves bearing the forged trade marks of Burberry, Prada, Chole and Armani.  The total number of items were 123 and the value (if taken at their estimated costs of manufacture price) was about $45,700 Hong Kong currency.

2.The facts of the case were that the appellant was the proprietress of a fashion shop in Pedder Street, Central.  Customs Officers went into the shop and after inspecting and ascertaining from the appellant the sale price of a Burberry coat to which a forged trade mark was attached, arrested the appellant.  That coat was being sold for $1,500.

3.On those facts the magistrate took a starting point of 6 months’ imprisonment which, given the appellant’s plea, was discounted to a sentence of 4 months’ imprisonment.

4.Mr Ross who appears for the appellant advances one ground of appeal to the effect that the sentence imposed was manifestly excessive.  He argues that the appellant was a first offender and was not a wholesaler of the goods in the sense that term is used in the leading case of Secretary for Justice v. Lam Chi Wah [1994] 4 HKC 343 per Chan CJHC (as he then was).  Although in that case the court was at pains to emphasise that it was not setting guidelines it suggested a principled approach to sentencing for offences such as the present.  One important factor was said to be whether or not the offender was selling the goods as genuine, so deceiving the purchasers.  That is a compelling matter which, if established, substantially increases the culpability of the appellant in the present case.  That is because it introduces an element tantamount to fraud into such offences. 

5.Mr Ross argues that if, by the facts agreed for the purposes of the appellant’s plea before the magistrate, the value of the 123 items seized was said to be $45,700 then the value of individual items was (on average) less than $400, and so a purchaser could not be deceived into believing the goods were genuine.  Mr Cheng for the respondent asserts that that value of the goods provided to the magistrate was based upon their cost of manufacture.

6.Whatever the position may be in that regard I have looked at the goods, or a sample of them, and given the quality of their labelling, their price presentation suggesting a massive discount from an original much higher price and the locality of the appellant’s shop, I am satisfied they were being sold as genuine goods and that purchasers of the goods would have undoubtedly accepted they were genuine and so have been deceived out of considerable sums of money.

7.Given that, I am unable to say that a deterrent sentence should not have been imposed, and in my view a starting point of 6 months’ imprisonment, given the quantity and value of goods involved and the damage to Hong Kong’s retail repetition, is not excessive.  Nor in my view are the mental and physical disorders the appellant suffers from, or her son’s partial blindness, matters which amount to substantial mitigation.  Nor are those matters so exceptional as to warrant a suspension of sentence.

8.Nevertheless the appellant’s clear record does assist her in the circumstances of this offence, and in my view after taking into account her plea of guilty, perhaps over-generously, a further discount is appropriate.  Her sentence is reduced to one of 3 months’ imprisonment.

Mr Raymond Cheng, SPP of Department of Justice, for HKSAR

Mr Phillip Ross, instructed by Messrs Eli K.K. Tsui & Co., for the Appellant