Public Prosecutor v Goh Soo Im Esther and Others

• Jurisdiction: Singapore
• Judge: Amy Tung
• Judgment Date: 15 June 2007
• Neutral Citation: [2007] SGMC 15
• Court: Magistrates' Court (Singapore)
• Published date: 26 July 2007
• Year: 2007
• Plaintiff Counsel: Chia Chor Leong and Sharmilee Shanmugam (Citilegal LLC)
• Defendant Counsel: Kirpal Singh (Kirpal & Associates)
• Citation: [2007] SGMC 15

15 June 2007

Magistrate Amy Tung:

The respondents, Quek Gim Siew (“Quek”) and Goh Soo Imm Esther (“Esther”) had been convicted on 21 May 2007 of various charges under section 49 of the Trade Marks Act (Cap 332) (“TMA”) for selling or exposing for sale or having in their possession for the purposes of trade boxes of cigars to which the trade marks ‘Cohiba’ or ‘Partagas’ had been falsely applied. Quek was convicted of a total of 21 charges while Esther was convicted of 23 charges. Both of them had appealed against their conviction. The grounds for their convictions were set out in detail in a written judgment (see [2007] SGMC 14) which was previously released to the parties and I have nothing further to add to that judgment.

2 Written mitigation and submissions on sentence were submitted by the defence and the prosecution respectively on 29 May 2007. I heard further oral submissions and sentenced them on 7 June 2007. Appeals have also been filed by them in respect of the sentences imposed.

Mitigation

3 The defence urged the court to consider the profile of the respondents and the history and operations of the business in imposing as lenient a sentence as possible. A non-custodial sentence was pleaded.

Profile of the respondents

4 Quek and Esther have been married for about 30 years. The business of Cigar Affair was run by Quek with the financial support of his mother, Madam Ee Ai Thin (“Madam Ee”). Accordingly, the business was listed under her name.

5 It was submitted that both Quek and Esther had no previous antecedents and throughout their lives, they had strived to lead decent, honest and respectable lives. They are not of means and had expended most of their savings on the education of their three children. A lot of their monies were also used up in defending the case against them, including engaging a foreign expert witness for the trial.

History and operations of the business – a brief background relating to the circumstances of the charges

6 Defence counsel reiterated the history of the business of Cigar Affair including its set up sometime in 1997. Parts of the mitigation under this heading were contrary to the findings of the court and I do not propose to deal with them. It is sufficient to note that the crux of the argument by defence counsel was really that this was not a case where Quek and Esther were part of a syndicate actively dealing in infringing articles and therefore, could be distinguished from the other cases where there were obvious and flagrant attempts to deal with known pirated and fake articles. It was further submitted that Quek and Esther had operated a reputable retail outlet in the lobby area of a five-star hotel and during the raid conducted on 18 August 2004, there were clearly genuine cigars in the shop which were not seized.

Submissions by prosecution

7 The prosecution submitted that the sentencing consideration in this instance should be one of deterrence. It was submitted that the offences committed by Quek and Esther were offences of dishonesty, which fundamentally undermine Singapore’s reputation as a centre for intellectual property rights.

8 The prosecution submitted on the following aggravating factors. First, Quek’s and Esther’s defences were founded on lies. Quek’s major plank of defence was that he had employed the “seven hallmark” test and satisfied himself of the genuineness of the cigars. This was contrary to the court’s finding that Quek did not use or rely upon the said test in order to check the genuineness of the cigars. He also claimed that Esther had a minimal role to play in the business of Cigar Affair and this was contrary to the court’s finding again that Esther was involved in the running of the business of Cigar Affair which was as much hers as his.

9 Secondly, both Quek and Esther did not plead guilty to the charges. On the contrary, they had placed every possible obstacle in the path of the prosecution. They applied to quash the search warrants. They then applied for the return of the seized items. When their defence was called at the close of prosecution’s case, they appealed to the High Court against that decision. They then mounted a vigorous defence, based on false testimony. At the end of the trial, they raised new issues, including challenges to the charges, and to the admissibility of the video records as evidence.

10 Thirdly, Quek and Esther had sold off all the seized items upon their return despite the charges laid against them and the fact that there was enough information in the complaints to show that the goods were suspect. It was submitted that they were actively dealing in counterfeit goods at the time of the raid and they continued to deal in them even after they had been charged.

11 Fourthly, Quek and Esther were brazenly carrying on business at a retail shop in a well-known hotel in the heart of town, openly offering and selling their goods to the general public. It was submitted that this was no furtive alley-way operation and that the brazenness of the respondents showed a clear disregard for the law and should be punished accordingly: see PP v Chan Soon Fatt [2007] SGDC 54 and PP v Yeo Wei Kian & Anor [2007] SGDC 55. It was further submitted that by operating under the mantle and respectability of being an authorised retailer of the complainant, Pacific Cigar Company (Singapore) Pte Ltd, and especially doing so from a retail shop in a reputable hotel, Quek and Esther were able to camouflage their illegal activities. Counterfeit goods were also displayed together with genuine goods on the shelves. This made it easier for the public to be deceived that the goods sold and offered by them were genuine Habanos cigars.

12 Fifthly, the suppliers’ invoices tendered to court showed that Quek and Esther had been dealing in counterfeit limited editions of Cohiba Robustos as early as March 2002. Cigar Affair’s sales records also evidenced sales of counterfeit limited editions of Cohiba Robustos to customers since April 2002. This proved a long history of Quek and Esther dealing in counterfeit cigars and their persistence in such offending behaviour.

13 Sixthly, Cigar Affair was not just a retailer but a wholesaler and an exporter. Quek had claimed during trial that Cigar Affair’s customers included large and reputable hotels like Fullerton Hotel, Intercontinental Hotel, Regent Hotel, Ritz-Carlton Hotel etc. and other fine dining places and clubs. Many of his clients were also well-heeled and well-travelled professionals. The prosecution submitted that this showed the scale and diversity of Cigar Affair’s illicit operations. Given that many of the consumers of the cigars supplied by Cigar Affair (including those who bought the cigars from the hotels, fine dining places and clubs supplied by Cigar Affair) would be tourists, foreigners and people who travel overseas, there is “horrific and untold damage to Singapore’s reputation as an intellectual property centre”.

14 Lastly, Habanos cigars are coveted luxury items and are very expensive. What purported to be limited edition cigars but which turned out to be counterfeit were even sold by Quek and Esther at almost twice the price of the standard Habanos cigars. A quick perusal of the sales records comprised in Exhibit D12 would show just how expensive Habanos cigars were. The direct financial benefits to Quek and Esther gained from their activities were obvious and huge.

15 Prosecution also argued that the trade marks were falsely applied to the cigar boxes as well as to each of the individual sticks of cigars contained within those cigar boxes. As such, each box and each individual stick of cigar should be treated as a separate “good” for the purposes of sentencing. The total number of infringing goods dealt with by Quek and Esther would be 1,625 and 1,677 respectively. In Ong Ah Tiong v PP [2004] SGHC 11, Yong Pung How CJ (as he then was) had approved the starting tariff of 12 months’ imprisonment and upwards for offences involving 1,000 infringing articles and above. Based on the various sentencing precedents cited, and the circumstances of the case, especially the aggravating factors against Quek and Esther, it was submitted that public interest and policy clearly calls for substantial and deterrent custodial sentences against them, in addition to the maximum fine of $100,000.

The Sentence

Sentencing basis – per cigar box or per individual cigar?

16 The prosecution had submitted that the court should view each box and each individual cigar as a separate “good” for the purposes of sentencing. This would bring the number of infringing articles well over 1,000. The defence, on the other hand, submitted that sentencing should be on the basis of per box of cigars and not on the basis of individual cigars.

17 In PP v Poh Kim Video Pte Ltd [2004] 1 SLR 373, the High Court held that there was nothing in the Copyright Act that prevents the court from regarding a box set of a single drama series comprising of 18 VCDs as an “article” for the purposes of sentencing. In so holding, the High Court had disagreed with prosecution’s contention that the court was bound to regard each VCD in the box set as an “article”. The High Court was of the view that since legislature has seen it fit not to provide a definition of “article” in the Copyright Act, each case must be considered on its own facts. The High Court was especially convinced that the approach as suggested by prosecution was untenable when viewed in the light of the fact that a single drama series could be released in different versions with different number of VCDs depending on how the versions might be split up. Regarding each VCD as an “article” in such circumstances would produce results which were incongruous and unsatisfactory.

18 The approach taken in PP v Poh Kim Video Pte Ltd was a sensible one and in my view, there was no reason why a similar reasoning could not be applied in the case of the TMA. No...