Coram: Peter Hui Esq. Ct 2

Date : 13.7.2006

Case Ref.: TMS 2730-2734/2006

Offence: D1 D2 : one count of procuring the application of a false trade description to goods outside Hong Kong

D2D3 &D4 : One count of importing goods to which a false trade description was applied

Defence : D1-D2 represented by Mr. Eric Kwok SC P/L

D3-D4 represented by Mr Colin Wright P/L

Verdict : No Case to answer all summonses. All summonses dismissed

Disposal of exhibits : Save as to P6 to be returned to D-4 and P12-12A to D-1 P5-P11 and P15-P27 are to be returned to C&E department. Rest to be retained in court file.

Brief Notes of Proceedings

1.Prosecution case in relation to facts : facts admitted by virtue of S.65C

2.Prosecution evidence : all as set out in the exhibit list prepared by the C& E Dept were produced and marked as exhibits following the same nomenclature. Specifically this included 2 shirts bearing “Daniel Hechter Paris” being samples of the infringing articles and 5 cautioned statements

Matters of law relied upon and brought up to the Court by the Prosecution relating to the threshold issue : whether the infringing articles (exhibit 12, 12A) being as they were before the court would be considered as False Trade Description within the meaning of Cap 362.

A. s.2 (b) under “false trade description” defines it can be meant as “ a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the defintion of “trade description” as would be false to a material degree

B. s.6(1)(c) “A person applies a trade description ... if he uses the trade description .... in any manner likely to be taken as referring to the goods

C.The English case Divisional Trading Officer v. Kingsley Clothing Ltd [1989] which suggested the various stages of correct approach to consider the issue of False Trade Description was before the court first brought up by the Mr.Eric Kwok SC in his No Case to Answer submission. This was expressly endorsed by the Prosecution in reply.

D.The Prosecution cited R v Tam Sho Lam [1988] 2 HKLR 586 as authority and asked the Court ruling against the defendants. This was based on similar facts “Giggles London” and “Daniel Hechter Paris”. The word “Paris” on the label of exhibit 12 , 12 A in the submission by the Prosecution was referable a geographical location enough to mislead an intending buyer. The Prosecution expressly invited the Court to direct its mind to apply the objective test as suggested by Bewley J. The Court once remarked this case was decided a while back and asked if there was any new relevant case. The Prosecution conceded this decision was made 18 years ago, however, this was still good law and still cited with approval as recently as 2006

3.Prosecution Case : The manufacturing processes as set out in the admitted facts i.e. Mainland China and Hong Kong with the seized 1,200 shirts samples of which were before the court as exhibits 12,12A bearing the lables designed and produced in such manner i.e. “Daniel Hechter Paris” was in breach of s. 7(1)(b) Cap 362 in the circumstances

The issue before the court

It was the duty of the court to decide ( based on the facts and evidence adduced whether the seized 1,200 shirts bearing such a logo/label) whether “Daniel Hechter Paris “ was a False Trade Description.within the meaning as set out in s.2 of Cap 362. In assessing the evidence the court has to bear in mind a False Trade Description includes a trade description though not false, is misleading to a material degree.

Defence No Case to Answer Submission

1.Mr. Kwok SC brifely outlined the English case Divisional Trading Officer v. Kingsley Clothing Ltd [1989] and the various stages said to be the correct approaches to determine the issue.

2.He said the case of R v Tam Sho Lam [1988] 2 HKLR 586 was just limited to its own facts and was not helpful in the present case

3.Without further discussion of law and facts he floated around some famous brand names and he took some liberty to download some images from the internet and showed to the court. A copy of which had been supplied to the Prosecution.

4.Briefly he contended the way the world as we now lived had gone a long way since 18 years ago. People perception changed

5.He sought strong reliance on the case of KTS/9452-55 /2001 involving the same facts and D1 as defendant. This the court ruled in favour of the defendant. He asked the present court to follow the same verdict. (Neither the relevant Notes of Proceedings nor the Reasons for Sentence were accessible by the present prosecution counsel on fiat. The details were not discussed in court in the present case.) As such the prosecution could make no comment nor could offer an explanation/reply.

6.Mr. Wright endosrsed what had been said by Mr. Kwok SC. On top of this he also downloaded some trade marks images as registered in HK from the internet for the Court reference. (copy of which was at float )

7.The Prosecution in reply stated “trade marks” are different from “trade descriptions” and that the statutes had cast a very wide net. The addresses were on adopting the correct approach as set out in Divisional Trading Officer v. Kingsley Clothing Ltd [1989]. The case of R v Tam Sho Lam [1988] 2 HKLR 586 was discussed.

Court 's Verdict

It was a brief one.

1.Having considered relevant interpretation and definition sections, submission by Defence and Prosecution , authorities and materials placed before it, this Court ruled the defendants did not have a case to answer. All summonses were dismissed

2.Regarding whether prospective purchasers might be mislead, there were no evidence to assist the court in relation to the price and market.

3.In coming to this conclusion, the court shared the same view of the judge in the summons under reference KTS/9452-55.

Application for Review under s. 104 Magistrates Ordinance (cap.227)

1.The Prosecution should apply to the learned magistrate for a review of his determination within 14 days of the original determination(i.e. 13.7.2006).

2.Regardless of what had been decided in KTS/9452-55 there was strong primac facie case against the defendants after the close of the Prosecution case.

3.Apparently the Court did not follow the correct approaches as set out by Lord Bingham in Divisional Trading Officer v. Kingsley Clothing Ltd [1989] in evaluating facts and evidence relating to issue of False Trade Descriptions

4.The Gailbraith test “requires defence counsel to address their minds, in making a submission, as to whether there is evidence to establish each and every element of the offence(s) before the court”1 All Defence Counsels submissions were confined to the threshold issue. Therefore this also limited the scope of the Prosecution's reply.

5.In deciding the issue :whether there is a misleading trade description which is false to a material degree, the Court failed to apply the objective test as set out in Bewley J in the case of Tam Sho Lam 1988 in determining whether an anticipated market was likely to be misled. In saying there was no evidence relating to the price and market to assist him, obviously the learned magistrate

took no notice to the market value of the seizure as stated in the Admitted Facts submitted under S.65C. Even granted in the unlikely circumstances there were not such evidence, as had been

rightly pointed out by McMahon, J in HKSAR v Lai Wing Hung & others (Magistracy Appeal no 1111 of 2005) the objective test in the case of Tam Sho Lam was not the only test, the Court

needed to use a common sense approach. In this regard, this present Court had not tried to decide upon this very issue

The Award of Defence Costs

1.Upon acquitting the Defendants, the Court awarded Costs to the Defence, taxed if not agreed.

2.Prosecution replied the accused 's own conduct had brought suspicion on themselves.

Further Remarks

1.The Admitted Facts were produced with the parts relating to matters of law excised.

2.Those parts in the facts admitted relating to the D3-4 were changed at the instigation of the Defence. The Prosecution had addressed the Court over the confession of D3-4 in the relevant cautioned statements as to the failure of due diligence on the part of the D3-4

巴黎名店不等於法國製造 ◎黃覺岸

大家都應當知道，若然一件貨品之上載有虛假的商品說明，那是會觸犯〈商品說明條例〉。我們購買貴價物品之時，也往往會加上一些產地來源的形容詞，例如「法國貨」、「美國貨」、「日本貨」等等，以示貨品是有高品質。香港人也明白，就是「香港製造」的成衣產品，也曾經是外國人心目之中的高價貨，有品質保證的標誌，絕不失禮。

但今時今日，地球已經一體化，在甚麼地方製造，是不是最重要？例如最暢銷的美國球鞋大家都知道是在巴西製造，而今天的中國有「世界工廠」的美譽，很多世界名牌貨品的生產地方是在中國。一件法國名牌的恤衫，不說明在甚麼地方製造，但只標明「巴黎」二字，算是觸犯了〈商品說明條例〉嗎？

HKSAR V SUNAN Industries Ltd & Anor [2008] 2HKC 125

這是一件刑事案件，被告從中國內地入口一批1200件上面標示著「Daniel Hechter, Paris」的襯衫，被告被指違反〈商品說明條例〉，有關的標籤被指誤導消費者產品是來自法國巴黎所製造。這是一個法律問題，還是只是一個簡單的事實問題？一個在香港的一般購物者，會否因為標籤上的巴黎Paris字眼，就會將襯衫當成是在法國製造，亦因而被誤導嗎？裁判官的判決是被告的罪名不成立。政府於是到高等法院原訟庭上訴。

法律觀點與事實的確認都在同一點上，就是一個普通的購物者或顧客（Shopper），在沒有甚麼專門知識的情況下，會否認為衣服上的標籤，是正在指示出生產襯衫的來源地。法庭認為沒有香港的陪審員（假設有陪審員的審理情況下，而陪審員代表一般人的見解，因為陪審員亦是來自一般人）會合理地認同情況是這樣。

今時今日，法官認為很多外國牌子是在中國製造的情況，已是一種常識。有關的標籤可能會帶來剎那間的初步錯覺（Fleeting First Impression），以為是法國製造，但這不等於已經傳達了一個不正確的事實，只要花時間想一想，顧客就會明白標籤上所指的是時裝店（Fashion House）是在巴黎，而非在巴黎製造，所以不構成誤導。在香港購物的遊客，亦應會有同樣認知，不易被誤導。

法官親自檢視這批襯衫的樣本，認為品質一流，明顯不會與市面上小店所售的假冒次貨混為一式。這批是典型與及保守的悠閒裝（Smart Casual），只會在悠閒店出售，價錢為六百港元左右一件。

時代已變，商品的設計與質量已經不會與生產的地方掛鉤。合理的香港顧客亦是不會有這樣的預期。襯衫的標籤（Hechter Daniel）只代表設計與品質，生產的地方是沒有所謂的。

控方特別指出一點，香港有很多平價的旅遊團，參加者可能知識與教育水平不高，因而受誤導。法官極為懷疑這一情況的可能性，但就算有，這些顧客同樣不是以產地作為購買與不買的考慮。◇

Trade description/Shirts bearing the label ‘Daniel Hechter,

Paris ’/Label not likely to be taken to indicate Parisian or

French manufacture/Label not an indication of place of

manufacture/ Label an indication of location of fashion house

商品說明 – 恤衫附有 ‘Daniel Hechter, Paris’ 的

標籤 – 標籤相當不可能被當作是顯示在巴黎或法

國製造 – 標籤並不顯示製造地方 – 標籤顯示時裝

店位處地點

MA 939/2007

(1) Sunan Industries Ltd

(2) Shine Ning Garments Ltd

This was an appeal by way of case stated against an order

made by a magistrate dismissing informations under the Trade

Description Ordinance, Cap 362, upon his finding that there was

no case to answer in respect of any of them.

The undisputed facts of the Appellant’s case were that the

Respondents had involved themselves in causing 1,200 shirts to be

manufactured in China, and imported into Hong Kong, bearing the

label in the collar ‘Daniel Hechter, Paris ’.

The question posed by the case stated for the opinion of the

High Court was: could, may or might a properly directed juror find

on the evidence that the label, ‘Daniel Hechter, Paris ’, was

anything likely to be taken as an indication of the place of

manufacture of the shirt to which it was attached. The evidence

related to the question extended no further than the fact that the

shirts bore the labels. There was no direct evidence indicating the

price at which a shirt was to be sold, or in what sort of shop. It

was not suggested that these shirts were fakes in the sense that

they were not genuine Daniel Hechter shirts.

It was common ground that a properly directed juror in the

case would be directed: (a) that in considering the question posed

they must consider what indication a Hong Kong shopper for such

goods would take; and (b) that if it was reasonably possible that

some Hong Kong shoppers might take the label as an indication of

the place of manufacture that would be sufficient to establish the

prosecution case, even though many more Hong Kong shoppers

might in fact take the opposite view.

The shirts were of good quality. They were the sort of shirts

that would attract the descriptions, mainstream, fairly

conservative, smart casual. The Appellant submitted that they

would not be out of place in a relatively smart shop in Hong Kong

at a price of $600 or so.The question engaged what a modern day juror would think

about what the modern day shopper would make of the label.

Held :

(1) The magistrate was of the view that no properly directed

jury could find that the label indicated a place of manufacture, and

he was right. Times had changed. The representation in such

labels these days told the shopper that the design and the quality

control of the government was associated with a particular place in

question. A properly directed juror could never be sure that a

Hong Kong shopper was likely to take such a label as the place of

manufacture;

(2) The plain, general knowledge amongst those minded to buy

a Daniel Hechter shirt, particularly in Hong Kong, was such that

the label would not likely be taken to indicate Parisian or French

manufacture;

(3) Although the Trade Descriptions Ordinance must be given a

fair and liberal interpretation, promoting its objectives, which

included providing a safeguard to members of the public who were

consumers and purchasers of goods, and to Hong Kong’s

reputation as an international trading and shopping centre, the

word ‘Paris ’ beneath a designer’s name on a shirt label was likely

to be taken as an indication as to where the design and quality

control emanated, and not where the shirt was manufactured. It

described the place where Daniel Hechter was situated;

(4) The general public were not ignorant of the fact that fashion

houses in London, Paris, New York and the like caused their

garments to be manufactured in China. Globalisation of trade and

manufacture was not a secret. Country of origin was no longer the

powerful indicator of quality that once it was. If the Appellant

was right then they would have an ordinary shopper contemplating

those capital cities as being the sites of enormous manufacturing

endeavour, for they claimed that the label might be taken as an

indication that it was Paris, and not France, that was the place of

manufacture;

(5) The Hong Kong shopper would include the tourist. Tourists

minded to buy Daniel Hechter shirts in Hong Kong were not likely

to regard Paris as being the home of the factory as opposed to the

fashion house from a perusal of the shirt label, even if they came

across the shirt in an expensive shop here. Although cheap

package tours might attract those of a more limited intellect and

general knowledge, such a person, in the unlikely event of his

being in the market for a shirt like this, would be so indifferent to the place of manufacture that he would not take the word ‘Paris’

as an indication of it;

(6) In contemplating what indication Hong Kong shoppers

would take from the label, there was a difference between what

might be a fleeting, first impression and something that could be

said to be ‘taken as ’ an indication of a fact. A moment’s thought

would reveal that the word ‘Paris ’ in this context was likely to be

taken by the shopper as no more than an indication of the location

of the fashion house, and that it was unlikely to be taken as the

place of manufacture;

(7) No Hong Kong juror could now sensibly contemplate that

the Hong Kong shopper might be likely to take the word ‘Paris’

on this label as an indication of the place of manufacture.

Result - Appeal dismissed.

HCMA 939/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 939 OF 2007

(ON APPEAL FROM TMS 2730 to 2734 OF 2006 (CONSOLIDATED))

____________

BETWEEN

HKSAR Appellant

and

SUNAN INDUSTRIES LIMITED 1^st Respondent

SHINE NING GARMENTS LIMITED 2^nd Respondent

____________

Before: Deputy High Court Judge Line in Court

Date of Hearing: 29 January 2008

Date of Judgment: 6 February 2008

_______________

J U D G M E N T

_______________

1. This is an appeal by way of case stated against an order made by a magistrate, Mr Peter Hui, dismissing informations under the Trade Descriptions Ordinance Cap 362 preferred against the two respondents upon his finding that there was no case to answer in respect of any of them.

2. There was no dispute concerning the facts of the appellant’s case. The respondents had involved themselves in causing 1200 shirts to be manufactured in China, and imported into Hong Kong, bearing the label in the collar ‘Daniel Hechter, Paris’.

3. The resolution of one question determines the result of this appeal. Both sides agree that the question is this: could, may or might a properly directed juror find on the evidence that the label, ‘Daniel Hechter, Paris’, was anything likely to be taken as an indication of the place of manufacture of the shirt to which it was attached.

4. It is also common ground that a properly directed juror in the case would be directed:

(a) that in considering the question posed they must consider what indication a Hong Kong shopper for such goods would take; and

(b) that if it is reasonably possible that some Hong Kong shoppers might take the label as an indication of the place of manufacture that would be sufficient to establish the prosecution’s case, even though many more Hong Kong shoppers might in fact take the opposite view.

5. The evidence relevant to the question extended no further than the fact that the shirts bore the labels. There was no direct evidence indicating the price at which a shirt was to be sold, or in what sort of shop. There was no suggestion that these shirts were fakes in the sense that they were not genuine Daniel Hechter shirts.

6. The magistrate saw samples of the shirts and I have seen them. They are of good quality. No one disputes that. They are not the sort of articles that would be sold very cheaply from stalls in markets. They are the sort of shirt that would attract the descriptions, mainstream, fairly conservative, smart casual. The appellant submitted convincingly that they would not be out of place in a relatively smart shop in Hong Kong at a price of 600 dollars or so.

7. The question engages what a modern day juror would think about what the modern day shopper would make of the label.

8. The magistrate was of the view that no properly directed jury could find that the label indicated a place of manufacture.

9. I agree with him. Times have changed. The representation implicit in such labels these days tells the shopper that the design and the quality control of the garment is associated with a particular place in question. A properly directed juror could never be sure that a Hong Kong shopper was likely to take such a label as an indication of the place of manufacture.

10. My view attributes no specialist knowledge to the ordinary shopper, because I judge that plain general knowledge amongst those minded to buy a Daniel Hechter shirt, particularly in Hong Kong, is such that the label would not likely be taken to indicate Parisian or French manufacture.

11. I do not forget that the Trade Descriptions Ordinance must be given a fair and liberal interpretation, promoting its objectives, which include providing a safeguard to members of the public who are consumers and purchasers of goods, and to Hong Kong’s international reputation as an international trading and shopping centre.

12. However, I judge that the word Paris beneath a designer’s name on a shirt label is likely to be taken as an indication as to where the design and quality control emanates, and not where the shirt was manufactured. It describes the place where Daniel Hechter is situated.

13. Thus, for instance, the labels of Donna Karan, New York, or Dunhill, London, tell the prospective purchaser that their clothing will be up to the standards associated with those names. The prospective purchaser of their garments would thereby expect them to meet their standards in design and quality, but would be indifferent as to the location of the factory that actually made the garment. This view merely acknowledges that the general public are not ignorant of the fact that fashion houses in London, Paris, New York and the like cause their garments to be manufactured in China. Globalisation of trade and manufacture is not a secret. Country of origin is no longer the powerful indicator of quality that it once was. If the appellant is right then they would have an ordinary shopper contemplating those capital cities as being the sites of enormous manufacturing endeavour, for they claim that the label may be taken as an indication that it is Paris, and not France, that is the place of manufacture. Of course it is possible that a few Hong Kong shoppers might take the view that the label did indicate Parisian manufacture, but in my judgment that is not reasonably possible. What Hong Kong shopper is ignorant of the factory outlet or the reduced price overrun in respect of genuine garments that are associated by their labels with Europe and the USA? Who among them would reasonably think that such garments had been manufactured on those continents and shipped here for such sales?

14. Mr Turnbull rightly points out that the Hong Kong shopper will include the tourist. Tourists minded to buy Daniel Hechter shirts in Hong Kong are not in my judgment likely to regard Paris as being the home of the factory as opposed to the fashion house from a perusal of the shirt label, even if they came across the shirt in an expensive shop here. He made the point that cheap package tours may attract those of a more limited intellect and general knowledge such that they may likely take the label as indicating the place of manufacture. I have grave doubts whether that is likely, but believe the point to be met by the consideration that such a person, in the unlikely event of his being in the market for a shirt like this, would be so indifferent as to the place of manufacture that he would not take the word Paris as an indication of it.

15. In contemplating what indication Hong Kong shoppers would take from the label, I perceive there to be a difference between what may be a fleeting, first impression and something that can be said to be ‘taken as’ an indication of a fact. Construing the term I hope in a common sense way involves the shopper giving the matter a moment’s thought. A moment’s thought would reveal that the word Paris in this context was likely to be taken by the shopper as no more than an indication of the location of the fashion house and that it was unlikely to be taken as the place of manufacture.

16. On the decisive point I agree with the magistrate that no Hong Kong juror could now sensibly contemplate that the Hong Kong shopper may be likely to take the word ‘Paris’ on this label as an indication of the place of manufacture.

17. Accordingly the appeal is dismissed. Without contention, the respondents shall have their costs to be taxed if not agreed.

(Peter Line)

Deputy High Court Judge

Mr R G Turnbull, Senior Assistant Director of Public Prosecutions & Mr Hayson Tse, Senior Government Counsel of the Department of Justice, for the Appellant

Mr Eric Kowk, S.C. and Mr C Y Li, instructed by Simon Siu, Wong, Lam & Chan, for the 1^st & 2^nd Respondents

Tam So Nam extract

1. The appellant was convicted on two summonses of applying a false trade description to 3,450 ladies dresses and importing the same, contrary to sections 7(1)(a) (i) and 12(l) respectively of the Trade Descriptions Ordinance, Cap. 362.

2. The trade description was on the dress labels, which contained the words "Giggles London". The first word of the logo was in large red lettering, whereas 'London' was in small black print on top and to the right.

3. The appellant owns a small trading company in Tsuen Wan. He does not understand English. In June 1986, his firm entered into an agreement with the English patent holder, Carrogold Ltd., under which he was authorised to use the logo on garments to be sold in Hong Kong.

4. The appellant placed an order for a quantity of dresses to be manufactured in a factory in China. He himself took the labels to China, where they were attached to the dresses. On importation into Hong Kong in November, 1986, they were seized by the Customs. There was no mark on the garments to indicate they had been made in China.

5. The market value of the consignment is admitted to be $53,000 and the appellant anticipated a profit of $2,000.

6. Under section 2(1) of the Trade Desoriptions Ordinance, a 'false trade description' means, inter alias, "a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of 'trade description' or, as such an indication, would be false to a material degree".

7. One of the matters specified in the definition of 'trade description' in the same section is 'place or date of manufacture, production, processing or reconditioning'

8. The prosecution case was that the label was likely to be taken for an indication that the dresses were made in London and was thereby misleading and a false trade description accordingly.

9. It is highly relevant that the dresses are of poor quality, shoddily made and expected to sell for only $11-12 and also that the anticipated market was Filipina maids, whose knowledge and judgment concerning the origin of such garments may be less than that of the other English-speaking inhabitants of the territory. The test as to whether they were likely to be so misled is an objective one.

10. The evidence in support of the prosecution case was admitted under section 65C of the Criminal Procedure Ordinances, Cap. 221. The appellant gave evidence and produced a letter and two telexes from Carrogold.

11. The Crown relied on A. G. v. Ikeda international (H.K.) Ltd.(1) in that case Takane Japan' was held to be a false trade description. I agree with Mr Sakhrani, for the appellant, as did the magistrate, that Ikeda can be distinguished from the present case, on the basic that, in that case, the issue was whether clock movements had undergone treatment or processing in China to such an extent that they could be said to have been manufactured in China. The significance of the expression "Takane Japan" was not considered.

12. The appellant gave contradictory evidence as to his purpose in using these labels. In chief he said it was in order to attract purchasers in the local market in cross-examination he denied that. The magistrate found him to be inconsistent and evasive.

13. The magistrate has written a comprehensive and helpful Statement of Findings.

14. That the appellant had permission from Carrogold to use the label was, in the magistrate's opinion, irrelevant. She also discounted the the fact that Carrogold itself had never been prosecutes in England.

15. Her conclusion was :-

"Adopting a common sense approach. I found 'Giggles, LONDON' a false trade description in that it, though not a trade description, was likely to be taken for an indication of the place of manufacture and as such an indication, it was false to a material degree as it was not disputed that the ladies' dresses were wholly made in China. In arriving at the finding, I did not need the assistance of expert evidence or evidence of a member of the public that he would be misled."

16. Mr Sakhrani complains that she has not said why she formed this opinion of the label. He submits that it is not enough simply to reject the defence case; the prosecution should lead evidence, from which the magistrate can infer that a reasonable prospective purchaser eras likely to be misled.

17. Mr. Sakhrani relies on Donnelly v. Rowlands(2) in which Lord Parker, C.J. said at page 12:-

"If there had been a finding supported by evidence that members of the public had been misled ............ then there would be some grounds for saying there was a false trade description."

18. In Williamson v. Tierney(3) the magistrate found that the term. English lever" was a false trade description, on the basis of evidence to that effect rather than as a matter of law. It was held on appeal that the court could not interfere with his decision.

19. In Kingeton-upon-Thames v. FW Woolworth & Co. Ltd.(4), it was held that evidence of trade practice was admissible to decide the issue, where the description was not unequivocally false.

20. I agree that evidence of trade practice, and indeed that of prospective purchasers, would have been admissible. I also agree that the magistrate must base her decision on evidence. Here, however, there was evidence, namely that the dress itself, its price and prospective market, together with that of the label. As counsel for the Crown points out, it is a simple item and there is no need for the prosecution to call evidence to resolve technical complexities, as in the cases cited by Mr Sakhrani.

21. Counsel complains that the magistrate has failed to examine the label adequately, or to make allowances for the fact that the word "London" does not stand out. At page 6 of her Statement of Findings she specifically notes that "London" was in black and much smaller in size than 'Giggles'". There is no substance in this criticism.

22. I am satisfied there was sufficient evidence before the magistrate on which to base her decision. I a am also satisfied she applied the correct test. it was open to the magistrate to come to the conclusion that the label was misleading. She has not erred in law and I cannot say her decision was manifestly wrong. For these reasons the appeal against conviction is dismissed.

Tam So Nam extract

5. The market value of the consignment is admitted to be $53,000 and the appellant anticipated a profit of $2,000.

7. One of the matters specified in the definition of 'trade description' in the same section is 'place or date of manufacture, production, processing or reconditioning'

8. The prosecution case was that the label was likely to be taken for an indication that the dresses were made in London and was thereby misleading and a false trade description accordingly.

13. The magistrate has written a comprehensive and helpful Statement of Findings.

15. Her conclusion was :-

17. Mr. Sakhrani relies on Donnelly v. Rowlands(2) in which Lord Parker, C.J. said at page 12:-

"If there had been a finding supported by evidence that members of the public had been misled ............ then there would be some grounds for saying there was a false trade description."

19. In Kingeton-upon-Thames v. FW Woolworth & Co. Ltd.(4), it was held that evidence of trade practice was admissible to decide the issue, where the description was not unequivocally false.

2014年3月16日星期日

商品說明 – 恤衫附有 ‘Daniel Hechter, Paris’ 的標籤 Sunan Industries Ltd

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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2014年3月16日 星期日

商品說明 – 恤衫附有 ‘Daniel Hechter, Paris’ 的 標籤 Sunan Industries Ltd

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

沒有留言:

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2014年3月16日星期日

商品說明 – 恤衫附有 ‘Daniel Hechter, Paris’ 的標籤 Sunan Industries Ltd