Fung Ka-shing v. The Queen
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CACC001286/1977
Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 2nd June, 1978. ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of five offences under section 3(2) of the Merchandise Marks Ordinance, Cap. 41. These offences were concerned with being in possession for the purposes of trade goods to which forged or false trade marks had been applied. He was sentenced to fifteen months' imprisonment on each of the five charges, the sentences were ordered to run concurrently. A fine of $10,000 was imposed on each of the third and fourth charges. The trial judge ordered that a term of twelve months' imprisonment was to be served if the fines were not paid. This part of his order was awkwardly worded as will appear from this judgment later. Originally, the appellant appealed against both conviction and sentence. However, on the hearing of the appeal, the appeal against conviction was withdrawn. 2. The appellant is a hawker and sells pocket radios in the market. His promises were raided and nearly 4,000 radios were discovered and seized by the Police. Many of these radios bore the trade mark of one of several well-known international firms, such as Philips, Sanyo, Sony and National. It appeared from the evidence, which was largely supplied by the appellant himself in a cautioned statement he made to the police, that the appellant and members of his family had put the trade marks of these firms onto locally produced and inferior radios. Also were found on the premises a very large number of what was described as "pieces of metal bearing foreign trade marks". These were obviously ready to be fixed to other radios. 3. Mr. H.L. Wong, counsel for the appellant, told the court that fifteen months' imprisonment was the highest sentence that had been passed for this offence so far as he has been able to discover. 4. Counsel referred to several cases in which manufacturers of forged or falsely trade marked goods had received a lesser term of imprisonment. He also referred to the fact that this appellant was not an exporter of such goods. He was only a hawker of such goods in the local market. This is an undoubtedly important point but we considered that this offence was a serious offence and that in the past the courts have treated offences falling under this section of the law with too great a leniency. It was also in evidence that the appellant himself had fixed the false trade marks to at least some of the radios. 5. We think that this was a very serious case, particularly in view of the large number of radios involved and we do not think that we should interfere with the sentence of imprisonment. 6. As mentioned above, the appellant was sentenced to two fines of $10,000 on the third and fourth charges. The subject matter of the third charge was 955 radios and 47 forged trade marks, and the fourth charge concerned 826 radios and 320 forged trade marks. It is difficult to see why those two charges were chosen for the additional punishment. But we do not think that a fine in cases of this nature is wrong in principle, even when a term of imprisonment is ordered to be served in addition. Counsel drew our attention to the important case of The Attorney General v. Ko Siu Mei(1) in which guidelines were laid down to assist the court to assess the scale of a fine to be imposed in a given case or for a given offence. One important consideration is the ability of the person fined to pay. 7. It does not appear from the record of this case that the learned trial judge sufficiently considered the ability of the appellant to pay the fines which were imposed. Undoubtedly, he is able to pay something but we think that the fines were manifestly excessive. 8. In the event, we allow the appeal against sentence to the extent that the two fines of $10,000 are set aside and there is substituted therefor two fines of $5,000 on each of the charges 3 and 4, In default of payment of each fine there will be a term of imprisonment of three months which will be consecutive to the fifteen months' imprisonment passed on all the charges. 9. In his judgment, the trial judge ordered that in default of payment of the fines of $10,000 there would be a term of twelve months' imprisonment in respect of each charge. The sentences of imprisonment to be concurrent to each other but consecutive to the other sentences of imprisonment. We do not think that this is right. There should have been a term in default of the payment of each fine separately.
Representation: H.L. Wong (Hastings & Co.) for Appellant Lindsay for the Crown/Respondent |