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Attorney General v Chow Chuen Fu And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date07 January 1985
Subject MatterMagistracy Appeal
Judgement NumberHCMA351/1984
CourtHigh Court (Hong Kong)
HCMA000351/1984 ATTORNEY GENERAL v. CHOW CHUEN FU AND ANOTHER

HCMA000351/1984

Magistracy Appeal No. 351 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

_______

BETWEEN

THE ATTORNEY GENERAL

 Appellant

AND
(1) CHOW CHUEN FU 1st Respondent
(2) LEONG IO KEI 2nd Respondent

_____________

Coram: The Hon. Mr. Justice Garcia in Court.

Dates of Hearing: 9 and 10 July 1984

Date of Delivery of Judgment: 7 January 1985

__________

JUDGMENT

__________

1. This is an appeal by way of case stated from the determination by the magistrate at Tsuen Wan of three out of six charges preferred against the two Respondents respectively under Sections 9(2) and 12 of the Trade Descriptions Ordinance, Cap. 362.

2. The 1st Respondent is a partner of Winson Import-Export Company (Hong Kong) and the 2nd Respondent is a partner of the Kuan Iec Garment Factory of Macao.

3. On the 2nd day of September 1983, officers of the Customs and Excise Department opened a container at the Container Loading Basin at Tsing Yi Island Lot No. 54, Tsing Yi Island, and seized the following goods therefrom:-

(a) 7,860 pairs of Gent's 100% cotton jeans marked with the "Winston Crown" logo; and

(b) 4,500 pairs of Gent's 100% cotton jeans marked "Sonneti".

4. It has been admitted that all these goods were made by the 2nd Respondent's factory in Macao, and were imported into Hong Kong for shipment to Port Said, Egypt, because there was no direct shipment from Macao to the latter city. The consignee in Hong Kong of the jeans was the Winson Import-Export Company, and the sealed containers in which the goods were found were transported to Hong Kong by lighter under a cargo receipt no. 03283.

5. In the summary of agreed facts, of which the above facts form part, the Respondents admitted that on the 2nd day of August 1983, the consignee, that is, the 1st Respondent's company, Winson Import -Export Company, applied for an import licence in respect of jeans sent to Hong Kong from Macao by the Kuan Iec Company. The licence was issued the following day. In respect of the same jeans, it is further admitted that the consignee applied for an export licence for their re-export from Hong Kong to Port Said, but there is no indication in the summary that such a licence was granted.

6. Other admitted facts are that the jeans found in the container and seized by the Customs and Excise Department had not been made or authorized by the makers of "Winston" or "Sonneti" jeans or by their respective agents. Further, the 2nd Respondent had the goods in his possession for trade having requested the 1st Respondent to receive them on his behalf.

7. The two Respondents were on these facts charged under the relevant sections of the said Ordinance - in respect of the "Sonneti" jeans, the 1st Respondent was charged, inter alia, for importing 4,500 pairs of gent's jeans to which a forged trade mark (Sonneti) had been applied, the date of importation being expressed as 2nd September 1983. The 2nd Respondent was charged, inter alia, firstly, with aiding and abetting the 1st Respondent in relation to the importation of the said goods, and secondly, with having them in his possession for the purpose of trade.

8. These charges and other charges with which this appeal is now concerned, were heard by the magistrate on 2nd February 1984, and evidence for the prosecution agreed in the form of the abovementioned summary, made under Section 65C of the Criminal Procedure Ordinance Cap. 221. On the facts set out in the summary, the magistrate found that both Respondents had a case to answer in respect of the said charges.

9. The Respondents did not give evidence or call any witnesses, and in the course of his final address to the magistrate, Counsel for both Respondents submitted that there was no evidence to show that the said jeans were imported into Hong Kong on or after 13th October 1978, that is the date when the "Sonneti" trade mark was registered in Hong Kong, hence, the principal ingredient of the charges against the two Respondents had not been proved. Moreover he pointed out that the import licence which the 1st Respondent applied for on 2nd August 1983 did not specify which jeans were involved, nor was there any evidence to indicate that the ''Sonneti" mark had been applied to the jeans without the consent of the registered owner of the trade mark. The summary of agreed facts states in respect of this matter: "The jeans which were seized had not been made or authorised by the makers (my italics) of "Sonneti" jeans or their agents."

10. In view of these submissions, the appellant sought to re-open its case by calling further evidence (a) to prove the date when the "Sonneti" jeans were imported into Hong Kong and (b) to show that no consent was given to the 2nd Respondent by the registered owner of the said trade mark for its use by the Respondent, but this application was refused.

11. A further application for a review of the magistrate's determination on the earlier application was unsuccessful, as also an application to address the magistrate further on the facts agreed in the summary. In the result, the two Respondents were acquitted of all the said charges laid against them.

12. In dismissing the charges, the magistrate found (i) there was no evidence to show that the "Sonneti" jeans were imported into Hong Kong in the container on or after 10th October 1978, and (ii) there was no evidence to show an absence of consent by the registered owner or of his agent to the use of the trade mark by the 2nd Respondent.

13. The first question of law posed by the magistrate in the case stated is whether he could properly only conclude on the admitted evidence that the seized "Sonneti" jeans had been imported on or after 13th October, 1978. In considering this question, it was submitted on behalf of the appellant that the facts in the summary do not preclude the magistrate from drawing any relevant and reasonable inferences from the admitted facts and in fact he should have drawn the inference that the "Sonneti" jeans had been imported into Hong Kong after the 10th day of October 1978 because - (i) the Customs officers had opened the said container on 20th September 1983; (ii) the goods were scheduled to be shipped to the 2nd Respondent's buyer in Port Said, Egypt; (iii) the only reason why the "Sonneti" jeans were shipped to Hong Kong was there was no direct shipment from Macao to Port Said and these goods were brought into Hong Kong solely for the purpose of taking them out; (iv) the 1st Respondent's firm to whom the Sonneti jeans were consigned, had only 9 days before, that is, the 2nd August 1983 applied for an import licence in respect of (a) jeans which had been imported from Macao and consigned by the 2nd Respondent's firm in that territory, and (b) the 1st Respondent's firm had also applied for an export licence to re-export the said jeans to Port Said.

14. However the Respondents reply that this case must be confined to what is contained in the summary and that no inferences could have been drawn from the admitted facts, nor could in any event the inferences indicated by the appellant be drawn.

15. On 2nd February 1983, when the magistrate announced that the Respondents had a case to answer on the admitted facts, the record annexed to the case stated shows that Counsel for the Respondents replied: "I have explained to Defendants their rights. They elect to remain silent and not call witnesses. Case for Defence." It appears to me that by implication the Respondents would have been able to exercise their right to adduce further evidence if they had so wished and not limit themselves to the facts set out in the summary.

16. In the Attorney General v. Wong Pang (1979) H.K.L.R. 61 it was held by the Court of Appeal that Section 65C of the Criminal Procedure Ordinance is only procedural and its purpose is to provide a simplified means of producing evidence before the Court, and evidence produced under this section is of the like nature as evidence given orally. It was also held that when evidence is adduced by way of admissions under Section 65C inferences can be drawn as they can be drawn from evidence adduced orally.

17. In the present case there was not, as far as I can read into the record of the trial an agreement by the parties that the trial was to proceed on the basis that those were the only facts in relation to the charges against the Respondents, and in my view by implication from the statement made by their Counsel there was no such agreement. There was therefore nothing to prevent the magistrate from drawing reasonable inferences from those facts. What are the inferences which may be drawn from the facts listed by the appellant?

18. The inclusion of the facts that "on 2nd August 1983, Winson Import-Export Company applied as importer for an import licence in respect of jeans sent from Macao by Kuan Iec. Issue of this licence was approved on 25th August 1983. In respect of those jeans, Winson Import-Export Company applied for export licences for re-export from Hong Kong to Port Said, Egypt;" would have served no useful purpose nor were they of any significance so far as the case against the Respondents is concerned unless such facts had some bearing on the jeans found in the container at Tsing Yi Island by officers of the Customs and Excise Department on 2nd September 1983.

19. With the other admitted facts, that is, that the goods in the container were sent here from Macao only for the purpose of transhipment to Port Said, it could be...

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