THE QUEEN v. USIAN FASHION MANUFACTURING LTD

HCMA000740/1989

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 740 OF 1989

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BETWEEN

	The Queen	Respondent
	AND
	Usian Fashion Manufacturing Limited	Appellant

MAGISTRACY APPEAL NO. 741 OF 1989

__________________________________

BETWEEN

	The Queen	Respondent
	AND
	CHOW Chi-wai	Appellant

____________________________________

Coram: de Basto, J.

Date of hearing: 29 July 1989

Date of judgment: 27 July 1989

 

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J U D G M E N T

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1. This is an appeal against sentence by two appellants, one a company and the other a director thereof, imposed after having pleaded guilty to making false statements in seven applications for export licences.

2. The goods in question were principally manufactured in China and the appellants falsely represented they had been manufactured in Hong Kong. As was said in Marvels' Case (Application for Review No.7 of 1984) prosecutions are brought to protect the international reputation of Hong Kong. An was said in YEUNG Hoi-yu v The Queen (Criminal Appeal 191 of 1979) and quoted in Marvels' Case:

" 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.

3. Another factor to be considered is that false statements in export applications may distort the quota figures when they are next considered to the possible detriment of honest traders.

4. The total value of the goods was $2,164,273. The director was fined a total of $330,000 and the company $760,000 as follows:

	Value of goods	Company fine	Director fine
1st summons	$182,168.	$70,000. (38.4%)	$30,000. (16.5%)
2nd summons	$965,407.	$300,000. (31%)	$70,000. (7.2%)
3rd summons	$53,381.	$20,000. (37%)	$50,000. (9%)
4th summons	$230,002.	$120,000. (52%)	$20,0000 (8.7%)
5th summons	$374,832.	$120,000. (32%)	$80,000. (21.3%)
6th summons	$266,000.	$80,000. (30%)	$60,000. (22.5%)
7th summons	$92,483.	$50,000. (54%)	$20,000. (21.6%)

5. The total fines imposed were just in excess of 50% of the total value of the goods. It will be seen that there are substantial variations in the percentages of the fines in relation to the value of the goods involved in each summons. On the 3rd summons the director appellant's fine represented 93% of the value of the goods in the 1st summons the director appellant's fine represented 16.5% of the value of the goods.

6. If the guideline of 40% mentioned in Marvels' Case had been used, the total fines would have amounted to about $850,000 ($650,000 for the company appellant and $200,000 for the director appellant). A mathematical calculation of the fine in percentage terms in Marvels' Case is about Applying that percentage figure to the instant case would produce the following figures :

	Company fine	Director fine
1st summons	$42,000.	$18,000.
2nd summons	$250,000.	$70,000.
3rd summons	$12,500.	$5,000.
4th summons	$55,000.	$20,000.
5th summons	$90,000.	$35,000.
6th summons	$65,000.	$25,000.
7th summons	$20,000.	$10,000.
(total)	$534,500.	$183,000.

7. In Marvels' Case, in accordance with the usual practice on Review, the Court of Appeal no doubt passed a lower sentence than it would have determined had it not been an Application for Review by the Attorney-General.

8. The appeals against sentence on both sets of appeals are allowed. The fines are set aside and will be substituted by the fines represented in the last table. The figure of 33% should not be taken as a precedent.

 

 

	(Gerald de Basto)
	Judge of the High Court

 

Representation:

Mr C.D.F. Coghlan, Sr Crown Counsel for Crown.

Mr A. Sedgwick, Q.C. and Mr K.Y. Thong instructed by Messrs. K.B. Chou & Co. for both appellants.