Choi Ka Shun v. The Queen
|
CACC000892/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 892 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 16th January 1974. ----------------- JUDGMENT ----------------- 1. The appellant was charged with one offence of possession of forged bank-notes, two of possession of goods for the purpose of trade to which a forged trade-mark had been applied, two of possession of goods for the purpose of manufacture to which a forged trade-mark had been applied and one of possession of goods for the purpose of manufacture to which a forged trade description had been applied. He pleaded guilty to possession of the forged bank-notes but not guilty to the remaining charges. He was found guilty on all six charges and sentenced to 18 months' imprisonment for possession of the forged bank-notes and to nine months' imprisonment upon each of the other charges, all sentences to run concurrently. He now appeals against those sentences. 2. The facts of the case were that a search warrant was obtained and the combined business and residential premises of the appellant at 134 Wing Lok Street, front portion, first floor, Hong Kong, were searched by the police in the company of agents of the Rolex Watch Company. In the premises, in addition to the forged bank-notes - that is, one Thai one-hundred baht note and two U.S. one-hundred dollar notes - there were found seven watches bearing the registered trade-mark of Rolex which had not been manufactured by or with the assent of the Rolex Company, nine watch case backs, seven watch cases and 21 labels all bearing the registered trade-mark of Rolex, and not manufactured by or with the assent of the Rolex Company, three steel watch bracelets bearing the registered trade-mark of Rolex, not being manufactured by or with the assent of the Rolex Company, 68 watch case middle parts bearing the trade description "1601" of the Rolex Company, not having been manufactured by or with the assent of that company, and 222 watch dials bearing the registered trade-mark "Seiko" not having been manufactured by the owners of that trade-mark, namely the Hattori Company of Japan. 3. The bank-notes were plainly not in a quantity to suggest that the appellant was in any way concerned with large scale forgery or uttering of such notes. Moreover they were found in a drawer in an envelope which was sealed with scotch tape so that there was no evidence that the appellant intended to utter them other than the very tenuous fact that, having discovered them to be forgeries, he had retained them in his possession. The appellant, who was formerly a seaman, had told the police that he had acquired the notes in Brazil and had not discovered them to be forgeries until his return to Hong Kong. 4. It is true that in this court the appellant's counsel has told me that he is instructed that the appellant received the Thai note from a Thai subject in exchange for a ring, one of the U.S. notes in Brazil and the other in Saigon. I can only observe that a man who has three different forged notes foisted on to him in three different places, is a singularly unfortunate individual - the more so when the evidence is that the two forged U.S. notes came from the same press. However, as I see it, I must look at the matter through the eyes of the learned magistrate and ignore this subsequent explanation of the possession, which was not before him. What was before the learned magistrate in the statement of facts related to the court was the appellant's statement that the notes had been accepted by him in Brazil and that he was unaware that they were forgeries until after he had returned to Hong Kong. His acquisition of the notes was therefore innocent for anything the court knew to the contrary and, as I have said, there was no realistic evidence of any intention to utter. 5. The case is thus by no means a bad case of its kind and the appellant had previously a clear record. In those circumstances it appears to me that the sentence of 18 months' imprisonment is harsh and that the interests of the community would be served and the appellant adequately punished if that sentence were reduced to one of nine months' imprisonment. 6. The sentences imposed upon the convictions relating to counterfeit watches, labels, bracelets and watch-parts were in each case of nine months' imprisonment those sentences to be concurrent and concurrent to the 18 months imposed for possession of forged bank-notes. Mr. Yip, for the appellant, urged upon me that the quantity involved was not great, that there was no open display or distribution of the watches and that the appellant operated on a small scale without any employee. In those circumstances, counsel submitted, the appropriate penalty was not imprisonment but a fine. 7. It is a fact that sentences of imprisonment for offences of this type have, more frequently than not, failed to withstand the impact of appeal. It is equally a fact however that trade in counterfeit watches is, as can be seen from the number of prosecutions being brought, rampant and that the sentences so far imposed have been inadequate to restrain this type of commercial double-theft. I say "double-theft" because there are two sufferers as a result of this type of activity, the unfortunate purchaser who believes that he is buying a prestigious watch whereas he is merely acquiring a sham, and the manufacturer whose good name is pilfered and reputation impugned. It may well be that the time has come when, at any rate where any appreciable volume of goods is involved, sentences of imprisonment should be the norm, rather than the exception, for this type of offence. 8. It may be salutary to repeat something which I said in the Full Court case of Hong Kong Dragon Co. Ltd. v. Reg. (1)
9. It remains for me to relate these general observations to the facts of the case before me and, in so doing, it will be useful to compare those facts with the facts in some recent cases, and the present sentences with the sentences in those other cases. 10. In Cr. App. 274 of 1973, a case which involved some 2,000 counterfeit watches and a-number of watch bracelets, sentences of twelve months' imprisonment imposed concurrently upon each of six charges, were reduced to fines of $3,000 upon each charge with consecutive sentences of one month's imprisonment on each charge in default. In that case my learned brother Cons took the view that the method of distribution of the watches was such that the reputation of Hong Kong had not suffered - a view with which Mr. Lucas, who appeared for the Crown in the present case, would take issue. However that may be, Cons J. did say in Cr. App. 274 of 1973 that if the case had been one in which, upon the facts, the reputation of the Colony might have suffered, he would have had no hesitation in agreeing that a prison sentence was the proper type of sentence. 11. In Cr. App. 415 of 1973, in which some 26 watches, 93 watch-backs, 4 watch dials and certain trade-mark symbols were involved, I reduced three concurrent sentences of 18 months' imprisonment to fines of $4,000 each with consecutive sentences of two months' imprisonment in each case, in default. That was largely because in that case, in sentencing, the learned magistrate had taken into consideration matters which were not strictly germane to the case before him. At the same time I observed that I was far from saying that a prison sentence might not be well merited in that type of case. 12. In Cr. App. 757 of 1973, a case which involved more than 10,000 spurious watches or watch-parts, my brother Leonard whilst upholding a custodial sentence as the proper type of sentence, reduced its duration from twelve months to six. 13. The number of spurious items involved in the present case is 337 which is very considerably less than the 2,000 involved in Cr. App. 274 of 1973, where sentences of imprisonment were reduced to fines, and outstandingly less than the 10,000 odd items in Cr. App. 757 of 1973 where a sentence of twelve months' imprisonment was reduced to six months. The figure of 337 is however, considerably higher than the approximate 100 in Cr. App. 415 of 1973 in which again, sentences of imprisonment were reduced to fines. I am far from suggesting that the quantity of items involved is the only test in deciding whether a sentence shall be custodial or not and indeed in Cr. App. 415 of 1973 I observed that I was not saying that a prison sentence might not have been well merited. I substituted fines for imprisonment in that case because in determining sentence, the learned magistrate had taken into consideration matters not strictly germane to the case before him. 14. The appellant is however a relatively small-scale offender and to make such a man the victim of the current hardening of attitude of the courts towards these offences before that hardening has really permeated public consciousness and in the light of the sentences imposed in Cr. Apps. 274 and 757 of 1973, is not, in my view, the most appropriate method of dealing with this particular offender and it is for that reason that I propose to substitute fines for imprisonment upon the charges relating to watches and parts. In deference to the learned magistrate I would say that I am aware that he did not have, as I had, the benefit of counsel's reference to, and argument upon, the results of other recent cases. 15. The writing is however on the wall in relation to this type of offence. Some months ago the magistrate Mr. Paul Corfe voiced a warning by saying that in future he would take a more serious view of these offences. I would endorse that by saying that in future cases of this type I shall be reluctant to substitute fines for prison sentences unless there are compelling reasons for so doing. 16. The appeal succeeds. I have already dealt with the offence of possession of forged bank-notes. The five sentences relating to offences concerning watches or watch-parts and accessories, are set aside and substituted by fines of $1,500 each upon charges (B) & (C), $750 upon charge (D), $2,000 upon charge (E) and $3,000 upon charge (F). Those fines total $8,750. In default of payment the appellant must go to prison for consecutive periods of six weeks, six weeks, three weeks, eight weeks and twelve weeks consecutively to the nine months' imprisonment for possession of forged bank-notes. The appellant is granted two weekes within which to pay the fines. Representation: John Ip of John Ip & Co. for appellant Lucas, D.D.P.P. for respondent. (1) Cr. App. 889 of 1971. |