Yeung Hoi Yu v. The Queen

CACC000121/1979

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Coram: Yang, J.

Date of Judgment: 5 March 1979

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JUDGMENT

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1. These are the Appellants' appeals against their sentences.

2. The Appellant in Criminal Appeal No. 120/1979 pleaded guilty to having caused one Yeung Hoi-yu to apply a false trade description namely, "Made in Indonesia", to 2,500 pairs of denim jeans contrary to section 3 (1) (f) of the Merchandise Marks Ordinance Cap. 41. The profits involved were some $4,000. The trial magistrate imposed a fine of $5,000 and an immediate custodial sentence of two months' imprisonment.

3. The Appellant in Criminal Appeal No. 121/1979 pleaded guilty to having caused one Mido Garment Factory, Ltd. to apply a similar false trade description to 4,296 pairs of denim jeans contrary to the same statutory provision. The profits were some $10,000. The sentence was a fine of $7,500 and an immediate custodial sentence of two months' imprisonment.

4. The main question which calls for consideration before me is whether or not an immediate custodial sentence is, in all the circumstances of each case, correct in principle.

5. A number of decisions have been referred to by counsel for the Appellants. In almost all those cases, save one, false trade marks of well-known brands were used, e.g. Michel Rene, G.E.C. , Goldlion, Rolex, Longines, Philips, Hitachi, Sony, etc. In some of them, immediate custodial sentences were imposed, whilst in others, heavy fines or suspended sentences were given. These cases are therefore in a somewhat different category as compared with the present situation.

6. The one exception is a case reported in the South China Morning Post on the 17th February 1979, where Mr. G.C. Byrne, sitting at North Kowloon Magistracy imposed fines totalling $8,000 for possessing and selling goods to which a false trade description had been applied. There labels bearing the description "Made in Swiss (sic.)" were found on styluses made in Japan. Whilst it is not immediately clear what advantages the appellants derived from applying false trade descriptions (though it is fair to assume there must be an advantage), in the styluses case quoted above, I suppose products claimed to have been made in Switzerland almost always denote good quality.

7. Trade being the life blood of Hong Kong, any conduct which damages our commercial reputation must be stopped. More especially, our reputation and image abroad must be resolutely protected, so that the confidence of our trading partners in all parts of the world, built up by our industry and integrity over many years, must not be permitted to be undermined by the dishonest few. However we must recognize that there are different degrees of dishonesty.

8. In my judgment a distinction may be drawn of the present cases from the case where a false trade mark is applied. The degree of deceit in the present type of cases is somewhat less culpable than the other type. Without in any way wishing to minimize the seriousness of the offences of which the Appellants have been convicted, and far from saying that in no case where a false place of origin has been given should a defendant be sent to prison, I am of the view that on the facts of the present cases, and having regard to the Appellants' clear records, pleas of guilty and co-operation with the authorities, justice will be met, and a deterrent effect will be achieved if I substituted in each case a heavier fine for a fine and imprisonment. I might add that immediate custodial sentences might have been justified if the Appellants had had similar convictions in the past.

9. Appeals allowed.

10. As regards the first appeal, the fine of $5,000 is increased to $6,000. The prison sentence is set aside.

11. As regards the second appeal, the fine of $7,500 is increased to $15,000. The prison sentence is also set aside.

Representation:

Mr. A.J.J. Sanguinetti (Gallant Y.T. Ho) for Appellants.

Mr. H.F. Boa, Crown Counsel, for Respondent.