HKSAR v. Cheng Wing Sing

HCMA 497/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 497 OF 2011

(ON APPEAL FROM KCCC 2347 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 30 September 2011

Date of Judgment: 30 September 2011

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J U D G M E N T

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1.The Appellant pleaded guilty before Ms Bina Chainrai in the Magistrate’s Court on a charge of possession for sale or for the purpose of trade or manufacture of goods to which a false trade mark was applied, contrary to section 9(2) as read with section 18(1) of the Trade Descriptions Ordinance, Cap 362. The charge, which was laid against the Appellant and his co-accused Mr Cheng Wai Mo, was particularised as follows:

“CHENG WAI MO and CHENG WING SING, you are charged that on the 24th day of September, 2010 at shop No. 2, G/F., Kar Lock Building, 5 Lock Road, Tsim Sha Tsui, Kowloon in Hong Kong, you had in your possession for sale or for any purpose of trade or manufacture goods, namely, (1) 25 bottles of Medicated Oil, (2) 19 bottles of Medicated Oil, to each of which a forged trade mark, namely, (1) ‘PO SUM ON OIL’, (2) ‘WONG TO YICK’, was applied.”

2.Upon the Appellant’s guilty plea, no evidence was offered against his co-accused.

3.The Magistrate considered an immediate custodial sentence to be the only appropriate sentence in the circumstances.  Taking a starting point of 9 weeks, she discounted that by a third for the Appellant’s guilty plea, and sentenced him to 6 weeks’ imprisonment.  He now appeals against sentence.

4.One perfected ground of appeal has been filed.  It reads:

“The sentence is manifestly excessive and/or wrong in principle in light of the circumstances. In particular, the learned Magistrate erred in failing to sufficiently consider the following matters:-

(1) The bottles of oil, which is the subject of the charge, are for external use and not to be ingested.

(2) The said bottles are neither as a poison or a drug which requires a prescription.

(3) The ingredients in the said bottles were not different from that of the genuine oil.”

5.At the hearing before me today, Mr Cheung for the Appellant stated that he accepted that the sentence is not manifestly excessive, but that if the Court comes to a different view on the sentence, then the Court is entitled to impose a different and lower sentence, which he urged me to do.  Even though only external use is involved, medicated oil involves public health.  Whatever the actual quality of the medicated oil involved, the application to them of forged trade marks is a serious matter. Where products involving public health is concerned, it is especially important that they be accurately and honestly labelled.  Those who offend against that requirement can generally expect to lose their liberty.  The more clearly that is understood, the safer the public will be.

6.In my view, the Magistrate passed an appropriate sentence.  This appeal is dismissed.

Mr Albert Cheung, instructed by Messrs Wong, Fung & Co, for the Appellant

Ms Irene Poon, of the Department of Justice, for the Respondent