Ong Ah Tiong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 27 January 2004
• Neutral Citation: [2004] SGHC 11
• Citation: [2004] SGHC 11
• Defendant Counsel: Edwin San (Deputy Public Prosecutor)
• Published date: 30 January 2004
• Plaintiff Counsel: Goh Phai Cheng SC and Cheah Kok Lim (Ang and Partners)
• Date: 27 January 2004
• Docket Number: Magistrate's Appeal No 167 of 2003
• Court: High Court (Singapore)
• Subject Matter: Benchmark sentences,Offences,Whether failure to consider overlapping charges resulted in longer sentence,Whether evidence of sale necessary,Whether tariff determined by reference to jail term awarded per charge or number of infringing articles involved,Sentencing,Possession of items with falsely applied trade marks,Whether intention to re-export infringing articles of mitigating value,Whether sentence manifestly excessive,Determination of sentencing tariff,Principles,Trade Marks and Trade Names,No evidence of infringing items being sold,Overlapping charges,Criminal Procedure and Sentencing,Section 49(c) Trade Marks Act (Cap 332, 1999 Rev Ed)

27 January 2004

Yong Pung How CJ:

1 This was an appeal against sentence. The appellant was convicted on three charges of having in his possession, for the purposes of trade, articles with falsely applied trade marks under s 49(c) of the Trade Marks Act (Cap 332, 1999 Rev Ed) (the “TMA”). He was sentenced to a total of 32 months’ imprisonment. I dismissed his appeal and now set out my reasons.

The undisputed facts

2 The appellant was the managing director of Hi-Star Multimedia Pte Ltd. He was the sole partner actively involved in running the business, the other two being sleeping partners.

3 On 25 March 2003, a sergeant from the Intellectual Property Rights Branch of the Criminal Investigation Department, together with a party of police officers, acted on information to raid Hi-Star Multimedia Pte Ltd. The appellant and two other accomplices were on the premises at the time. The premises were searched and the following articles seized:

Number of pieces Item

16,150 PlayStation memory cards

2,541 PlayStation game controllers

23,515 Gameboy casings

255 DVD ROMs

6,841 Gameboy cartridges

Unknown Nintendo packaging covers

Unknown PlayStation packaging covers

4 The appellant admitted that he began to import these counterfeit articles some five to six years ago for sale in both local and overseas markets. He employed two men to assist in the sale of these items. The appellant did not deny knowing that the seized items were counterfeit articles or that he intended to trade in them.

The decision below

5 Altogether, six charges were brought against the appellant. He was convicted on the first three charges and admitted to the offences contained in the other three similar charges, which were taken into consideration for the purposes of sentencing. The first five charges related to the appellant’s offence of having counterfeit articles in his possession for the purpose of trade, as caught by s 49(c) of the TMA, which provides that:

Any person who has in his possession for the purpose of trade or manufacture, any goods to which a registered trade mark is falsely applied shall … be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for each goods or thing to which the trade mark is falsely applied (but not exceeding in the aggregate $100,000) or to imprisonment for a term not exceeding 5 years or to both.

6 The sixth charge dealt with the possession of infringing copies of copyrighted materials for the purposes of sale, in contravention of s 136(2)(a) of the Copyright Act (Cap 63, 1999 Rev Ed), which reads:

A person who at a time when copyright subsists in a work has in his possession or imports into Singapore any article which he knows, or ought reasonably to know, to be an infringing copy of the work for the purpose of selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or to imprisonment for a term not exceeding 5 years or to both.

7 The infringing articles covered by each charge were, respectively:

1st charge: 8,056 pieces of Nintendo game cartridges

2nd charge: 1,255 pieces of Sony Playstation 2 (“PS2”) game controllers; 5 pieces of Sony Playstation 1 (“PS1”) (non-analogue) game controllers; 5 pieces of PS1 (analogue) game controllers; 977 pieces of PS1 (dual shock) (analogue) game controllers and 16,151 pieces of PS1 memory cards

3rd charge: 1,255 pieces of PS2 game controllers; 5 pieces of PS1 (non-analogue) game controllers; 5 pieces of PS1 (analogue) game controllers

4th charge: 1,255 pieces of PS2 game controllers

5th charge: 250 pieces of Electronic Arts Inc game cartridges

6th charge: 171 copies of Sony Computer Entertainment Action Reply (2) (CD-Rom with relay card) and 79 copies of Sony Computer Entertainment DVD Region X (CD-Rom with card).

8 The trial judge noted that the circumstances in which the offences were committed were aggravating. The total number of infringing articles involved came up to 26,449 items, far exceeding those in the sentencing precedents before him. He found that as managing director and the only active partner of the company, the appellant had played a significant role in the commission of the offences. Moreover, the appellant was not just a small retailer, but a reasonably large-scale distributor of the counterfeit items, at the upper end of an organised operation that involved two accomplices working under him. Furthermore, the infringing articles involved popular items like Nintendo Gameboy cartridges and Sony PlayStation accessories.

9 For these reasons, the trial judge considered that the offences committed by the accused were grave in nature, as reflected in the maximum punishment prescribed by law for an offence under s 49(c) of the TMA. He considered the question of public interest as well as our government’s strong efforts to promote Singapore as a regional intellectual property centre, and concluded that a deterrent sentence was warranted in this case.

The appeal

10 Before adverting to the evidence that was before the trial judge and the additional arguments brought before me, I reminded myself of the limited function of an appellate court faced with an appeal against sentence. An appellate court may only interfere if it is satisfied that (a) the sentencing judge made the wrong decision as to the proper factual basis for sentence; (b) there was an error on the part of the trial judge in appreciating the material placed before him; (c) the sentence was wrong in principle; or (d) the sentence imposed was manifestly excessive: Tan Koon Swan v PP [1986] SLR 126, Lim Poh Tee v PP [2001] 1 SLR 674.

11 This appeal was brought on the fourth ground, that the sentence of 32 months imposed on the appellant was manifestly excessive in light of the trial judge’s failure to consider or consider adequately the facts of the case, all the mitigating factors and the relevant sentencing precedents.

12 I turn now to the issues raised upon appeal.

Aggravating factors

13 The appellant took issue with various aggravating factors that the trial judge noted when coming to his decision on sentence.

14 I accepted the appellant’s contention that the total number of infringing articles involved was only 25,234 and not the number of 26,449 arrived at by the trial judge. Nevertheless, I considered that this relatively slight difference in number was immaterial for sentencing purposes.

15 The appellant argued that there was no evidence supporting the conclusion that he was a large-scale distributor of the counterfeit items, as the items seized had been accumulated over a period of five to six years. I...