Public Prosecutor v Koh Peng Kiat and another Appeal

JurisdictionSingapore
JudgeChoo Han Teck J
Judgment Date05 September 2014
Neutral Citation[2014] SGHC 174
Plaintiff CounselFrancis Ng and Suhas Malhotra (Attorney-General's Chambers)
Docket NumberMagistrate’s Appeal No 144 of 2013/01/02
Date05 September 2014
Hearing Date30 May 2014,04 August 2014
Subject MatterHealth Products Act,Statutory offences,Trade Marks Act,Criminal law,Abetment
Year2014
Citation[2014] SGHC 174
Defendant CounselPeter Ong Lip Cheng (Templars Law LLC)
CourtHigh Court (Singapore)
Published date08 September 2014
Choo Han Teck J:

These two magistrate’s appeals arise from the District Court’s decision in PP v Koh Peng Kiat [2013] SGDC 244. The first magistrate’s appeal, MA 144 of 2013/01 is the Public Prosecutor’s appeal against sentence. The second, MA 144 of 2013/02, is a cross appeal by Koh Peng Kiat against conviction. Koh is an Optometrist. He holds a Bachelor of Science in Optometry from the University of Cardiff and a Diploma in Optometry from the Singapore Polytechnic. He operates a business known as Eye Cottage Pte Ltd that sells glasses and contact lenses. The business has a branch each at Stirling Road, Purmei Road and Redhill Close.

After a ten day trial, the District Judge convicted Koh on 14 charges. The first two are charges under s 49(c) of the Trade Marks Act (Cap 332, 2005 Rev Ed) (“TMA”) read with s 107(c) of the Penal Code (Cap 224, 2008 Rev Ed) for abetting by intentionally aiding persons to have in their possession for the purpose of trade, boxes of contact lenses to which the registered trade mark “FRESHLOOK COLORBLENDS” had been falsely applied. CIBA Vision is the registered proprietor of this trade mark. Section 49(c) of the TMA states:

Importing or selling, etc., goods with falsely applied trade mark 49. Any person who —

(c) has in his possession for the purpose of trade or manufacture,

any goods to which a registered trade mark is falsely applied shall, unless he proves that — (i) having taken all reasonable precautions against committing an offence under this section, he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the mark and on demand made by or on behalf of the prosecution, he gave all the information in his power with respect to the persons from whom he obtained the goods; or (ii) he had acted innocently,

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.

Section 107(c) of the Penal Code states:

Abetment of the doing of a thing 107. A person abets the doing of a thing who —

(c) intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 2. – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission thereof, is said to aid the doing of that act. [Explanation 1 and Illustration omitted]

Section 109 of the Penal Code provides as follows:

Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment

109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

[Explanation and Illustrations omitted]

The first charge alleges that Koh abetted the offence by intentionally aiding Neo Teck Soon to have in his possession for the purpose of trade 100 boxes of these counterfeit contact lenses. The second alleges that Koh abetted the offence by intentionally aiding Wong Chow Fatt to have in his possession for the purpose of trade 30 boxes of counterfeit contact lenses.

The remaining 12 charges are under s 16(1)(b) of the Health Products Act (Cap 122D, 2008 Rev Ed) (“HPA”) for arranging to supply counterfeit contact lenses purporting to be Freshlook ColorBlends lenses. The relevant portions of s 16 of the HPA state:

Prohibition against supply of health products that are adulterated, counterfeits, etc. 16. —(1) No person shall supply, or procure or arrange for the supply of, any health product which is — (b) a counterfeit health product;

(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction — (b) in the case of an offence under subsection (1)(a), (b) or (c), to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 3 years or to both.

(3) In any proceedings for an offence under subsection (1), it shall be a defence for the accused to prove that — (a) he — (i) did not know; (ii) had no reason to believe; and (iii) could not, with reasonable diligence, have ascertained, that the health product was in contravention of that subsection; and (b) he had taken all such precautions and exercised all such due diligence as could reasonably be expected of him in the circumstances to ensure that the health product did not contravene that subsection.

The first 6 charges under s 16(1)(b) of the HPA allege that Koh arranged to supply Neo with a total of 100 pairs of counterfeit contact lenses. The other 6 allege that Koh had supplied Wong with a total of 30 pairs of counterfeit contact lenses. All 14 charges allege that the counterfeit contact lenses came from one Ah Seng, who has not been found.

Koh was fined $38,000 (in default 5 months and 18 months imprisonment). This is the sum total of the following: a $20,000 fine (in default 5 months imprisonment) for the first charge; a $6,000 fine (in default 6 weeks imprisonment) for the second charge; a $1,000 fine (in default 1 week imprisonment) for each of the twelve charges under s 16(1)(b) of the HPA.

I will first consider Koh’s appeal against conviction. Koh’s lawyer made the following arguments in respect of the first two charges: the offence under s 49(c) of the TMA is not strict in liability; these two charges do not stand as Neo and Wong were not in possession of counterfeit lenses from Ah Seng; Koh did not abet by intentionally aiding Neo and Wong in committing an offence under s 49(c) of the TMA; and Koh has valid defences under provisos (i) and (ii) to s 49 of the TMA. In respect of the remaining twelve charges under s 16(1)(b) of the HPA, Koh’s lawyer submitted that: (1) the offence under s 16(1)(b) of the HPA is not strict in liability; and (2) there is insufficient evidence that Koh arranged for the supply of counterfeit contact lenses from Ah Seng to Neo and Wong.

In Cigar Affair v Pacific Cigar Co [2005] 3 SLR(R) 633, Woo J held that an offence under s 49 of the TMA may be established “without the mens rea and it is for the accused person to satisfy either of the [defences stated in the provisos to s 49 of the TMA]” (at [13]). The court there rejected the argument by the applicant that a person had to have the requisite mens rea before he could be guilty of an offence under s 49 of the TMA. I am in agreement with that view. Although there is a presumption that mens rea is a necessary ingredient of every statutory provision creating an offence, this presumption can be rebutted (Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 at 14; PP v Teo Kwang Kiang [1991] 2 SLR(R) 560). Section 49(c) of the TMA does not state that mens rea is an element of...

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4 cases
  • Public Prosecutor v Koh Peng Kiat
    • Singapore
    • Court of Appeal (Singapore)
    • 24 November 2015
    ...facts The questions referred to us arose from the High Court’s decision in Public Prosecutor v Koh Peng Kiat and another appeal [2014] 4 SLR 703 (“the Judgment”) to allow the appeal of Koh Peng Kiat (“the Respondent”) against his convictions by the District Court. We should highlight at the......
  • Public Prosecutor v Koh Peng Kiat
    • Singapore
    • Court of Three Judges (Singapore)
    • 24 November 2015
    ...facts The questions referred to us arose from the High Court’s decision in Public Prosecutor v Koh Peng Kiat and another appeal [2014] 4 SLR 703 (“the Judgment”) to allow the appeal of Koh Peng Kiat (“the Respondent”) against his convictions by the District Court. We should highlight at the......
  • Public Prosecutor v Timothy Nicholas Goldring, Geraldine Anthony Thomas and John Andrew Nordmann
    • Singapore
    • District Court (Singapore)
    • 19 November 2014
    ...the food was indeed unfit for human consumption.” The above passage was approved and applied in the High Court in PP v Koh Peng Kiat [2014] SGHC 174 at I am unable to accept, beyond reasonable doubt, that Geraldine Nordmann had any knowledge of whether any or significant sales of Boron lubr......
  • Public Prosecutor v Qiao Mu
    • Singapore
    • District Court (Singapore)
    • 13 March 2020
    ...Submissions See paragraph 10-21 of Prosecution Closing Submission 77 This was the view taken by the High Court in PP v Koh Peng Kiat [2014] 4 SLR 703 at See paragraph 28-60 of Prosecution Closing Submission and paragraph 2-11 of Prosecution’s Reply Submission 79 NE Day 8 page 20 80 See para......

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