Hong Kong Case Law: Decisions & Judgments

Topic

False trade description

Legal area

Court

16 May 2022

香港特別行政區訴宏信工程顧問有限公司及另一人

Citation

[2022] HKCFI 1349
Court

Court of First Instance
Case number

HCMA26/2022

The trial judge, having seen and heard witnesses, properly construed the contemporaneous recorded conversation in its context and reasonably concluded the appellants represented the company as a registered electrical contractor when it was not; the judge was entitled to discredit favorable parts of cautioned statements and the appellants failed to discharge any evidential burden under s26AA, therefore convictions were safe and the appeal dismissed.
13 Apr 2016

HKSAR v. LUEN ON MOTORS LTD AND OTHER

Citation

HKSAR v. LUEN ON MOTORS LTD AND OTHER
Court

Court of First Instance
Case number

HCMA217/2015

Court accepted prosecution witnesses and inferred the odometer was altered while the vehicle was in the company's possession; the director had an active role and knowledge such that the company and director were party to the offence, excluding the s26 defence; convictions of the company and director were therefore upheld; sentencing for the director and salesperson was reduced from 6 to 3 months, with the director's 3‑month term suspended for 2 years.
22 Sept 2010

HKSAR v. WONG MAU LAM

Citation

HKSAR v. WONG MAU LAM
Court

Court of First Instance
Case number

HCMA549/2010

The court found significant doubt that the label 'RPM‑3880' was a false trade description rather than a brand or model designation and accepted that, given the appellant's role as a part‑time salesman and the way the sample was displayed, it was reasonable that he could have believed the label referred to a model number; consequently the convictions could not stand and the appeal (though out of time) was allowed and the conviction quashed.
13 Feb 2008

HKSAR v. AU MAN KIN AND ANOTHER

Citation

HKSAR v. AU MAN KIN AND ANOTHER
Court

Court of First Instance
Case number

HCMA1099/2007

The magistrate properly exercised judicial discretion under s.3(1)(c) to refuse costs because the appellants' failure to disclose their defence during the investigatory stage brought suspicion upon them and could have affected the investigation and prosecution; accordingly the refusal of costs was upheld and the appeal dismissed.
13 Feb 2008

HKSAR v. AU MAN KIN AND ANOTHER

Citation

HKSAR v. AU MAN KIN AND ANOTHER
Court

Court of First Instance
Case number

HCMA1101/2007

The magistrate properly exercised the statutory discretion under s3(1)(c) by considering the appellants' conduct during investigation and at trial, concluding that their non-disclosure of their defence had brought suspicion upon them and that there was a causal connection to the prosecution and its costs; the appellate court found no error and dismissed the appeal.
25 Jan 2008

HKSAR v. T.S. LINES LTD

Citation

HKSAR v. T.S. LINES LTD
Court

Court of First Instance
Case number

HCMA898/2006

Applying the Court of Appeal's reasoning in the Kong Hing Appeal, the statutory defence under s.12(2)(a) succeeded for the shipping agent because the appellant had no knowledge or suspicion and could not, with reasonable diligence, have discovered the false trade description; the magistrate erred in denying the defence and the conviction must be set aside.
7 Dec 2007

HKSAR v. KONG HING AGENCY LTD

Citation

HKSAR v. KONG HING AGENCY LTD
Court

Court of First Instance
Case number

HCMA144/2006

The Court held the reasonable diligence defence was available to the Appellant shipping agent and on the facts there were no indications that would reasonably have put the Appellant on inquiry; shipping agents do not as a matter of ordinary duty inspect or break seals on containerised cargo and therefore the Appellant satisfied all three limbs of s12(2) and the conviction was set aside.
21 Mar 2006

HKSAR v. LAI WING HUNG AND OTHERS

Citation

HKSAR v. LAI WING HUNG AND OTHERS
Court

Court of First Instance
Case number

HCMA1111/2005

The convictions were unsafe and were quashed because the magistrate's reversal on review lacked a proper basis: he either misapplied the relevant legal test (confusing trade mark and trade description offences) or, in reality, applied no different test on review from that at acquittal while purporting to reach a contrary factual conclusion; given his original findings that no reasonable shopper would be deceived, the conviction could not safely stand and the sentences were set aside.
8 Mar 2006

HKSAR v. LAU LAP KIN AND ANOTHER

Citation

HKSAR v. LAU LAP KIN AND ANOTHER
Court

Court of First Instance
Case number

HCMA991/2005

The High Court held that the prominent application of the counterfeit 'Beautyrest' mark on mattresses constituted an (indirect) indication of the manufacturer within the statutory definition of 'trade description', was false to a material degree, and therefore satisfied the offence under section 7(1)(b); the appellants, as directors exercising control and having knowledge of the promotional exercise, were in possession and the section 26 defence was not established.
23 Jun 2003

HKSAR v. WONG PING CHEUK AND ANOTHER

Citation

HKSAR v. WONG PING CHEUK AND ANOTHER
Court

Court of First Instance
Case number

HCMA176/2003

Convictions set aside because the authorization letter and OEM licence legitimately raised the possibility that the 2nd appellant was authorized by OEM to manufacture the goods and the magistrate's sole reliance on PW1's limited evidence that the licensor had not approved the designs made the finding of unauthorized manufacture unsafe; appellants acted reasonably in relying on the legitimate licensee and the written agreement and, on the evidence, the due diligence defence would have succeeded.