Public Prosecutor v Koh Peng Kiat

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 24 November 2015
• Neutral Citation: [2015] SGCA 58
• Citation: [2015] SGCA 58
• Docket Number: Criminal Reference No 4 of 2014
• Published date: 26 November 2015
• Hearing Date: 01 October 2015
• Plaintiff Counsel: Francis Ng, Suhas Malhotra and Stacey Anne Fernandez (Attorney General's Chambers)
• Date: 24 November 2015
• Defendant Counsel: Elizabeth Ng Siew Kuan as amicus curiae.,The respondent in person
• Court: Court of Appeal (Singapore)
• Subject Matter: Abetment,Trade marks and trade names,Offences,Mens rea,Elements of crime,Criminal law

Chao Hick Tin JA (delivering the judgment of the court): Introduction

By this criminal reference, the Public Prosecutor (“the Applicant”) has referred the following three questions of law of public interest for determination by this court pursuant to s 397(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed): Are the statutory defences in s 49 of the Trade Marks Act (Cap 332, 2005 Rev Ed) (“TMA”) available to a person tried for abetting an offence under s 49(c) of the TMA (“Question 1”)? Must a person seeking to rely on the statutory defence in s 49(i) of the TMA take all reasonable precautions before he can be said to have no reason to suspect the genuineness of the mark on goods to which a registered trade mark has been falsely applied (“Question 2”)? Is an offence under s 16(1)(b) of the Health Products Act (Cap 122D, 2008 Rev Ed) (“HPA”) one of strict liability, such that the Prosecution does not have to prove that the person charged with such an offence has knowledge that the health product in question is a counterfeit (“Question 3”)?

After hearing the parties as well as the amicus curiae, Assoc Prof Elizabeth Ng Siew Kuan (“Prof Ng”), on 1 October 2015, we reserved judgment. We now give our opinion below.

Background 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 outset that the Applicant has stated that, regardless of the answers given to the questions in this reference, they do not seek a re-opening of the acquittals of the Respondent in the High Court. It was therefore not necessary for us to consider whether the Judge’s factual conclusions on the evidence before him were correct. Nevertheless, we shall set out the key facts of the case as an appreciation of the factual backdrop of the case is necessary to put the issues in this reference in their proper context.

The Respondent was an optometrist who owned an optical shop which sold spectacles and contact lenses. He had a partner named Neo Teck Soon (“Neo”), and another friend, Andy Wong (“Wong”), who was also in the contact lens trade. The Respondent came to know, in the course of his work, a Malaysian man known only as “Ah Seng”. The Respondent was informed by Ah Seng that the latter could procure boxes of FRESHLOOK COLORBLENDS contact lenses from Malaysia at a good price. FRESHLOOK COLORBLENDS is a trade mark registered in Singapore owned by CIBA Vision Pte Ltd (“CIBA Vision”).

Subsequently, the Respondent assisted Wong and Neo in purchasing the contact lenses from Ah Seng. In Wong’s case, arrangements were made for Wong to pick up the boxes of FRESHLOOK COLORBLENDS contact lenses from the Respondent’s shop. Wong collected 30 boxes and paid $8 per box for a total of $240. As for Neo’s case, the Respondent owed Neo some money and to help reduce the debt, the Respondent had suggested to Neo to buy contact lenses from Ah Seng at $10 per box. The Respondent said he would absorb $7.50 of that price to reduce the debt payable. The Respondent made arrangements with Ah Seng and Neo later collected 100 boxes of lenses from a person (purportedly Ah Seng) at a bus stop for $250. As it turned out, the boxes of contact lenses purchased by Wong and Neo through the Respondent from Ah Seng, which Wong and Neo subsequently resold to others, were found to be counterfeit.

The Respondent faced 14 charges at trial: Two charges under s 49(c) of the 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. 12 charges under s 16(1)(b) of the HPA for arranging to supply counterfeit contact lenses purporting to be FRESHLOOK COLORBLENDS lenses.

The District Court decision

The Respondent was found to be guilty and convicted on all the charges by the District Court. In coming to its decision, the District Court made the following findings. First, the Respondent had played an active and crucial role in arranging the deals between Ah Seng and Wong, as well as Ah Seng and Neo. Secondly, it was found that the Respondent had reasons to suspect the genuineness of the contact lenses but did not take any reasonable precautions or exercise any due diligence for the following reasons: The Respondent did not ascertain from Ah Seng the provenance of the contact lenses and he had not checked with CIBA Vision on the authenticity of the contact lenses to be supplied by Ah Seng. The price offered by Ah Seng was much lower than the usual retail price and the Respondent would have known of that. The low prices should have aroused his suspicion regarding the authenticity of the products. The Respondent should have ascertained from Ah Seng whether Ah Seng had a valid importer or wholesaler’s licence to import and distribute those contact lenses in Singapore, or alternatively, checked with CIBA Vision or the relevant authorities on the licences required.

The Respondent was sentenced to a total fine of $38,000 (in default five months’ and 18 weeks’ imprisonment), being the sum total of the following: a $20,000 fine (in default five months’ imprisonment) for the first charge (for abetting the offence by intentionally aiding Neo to have in his possession for the purpose of trade 100 boxes of counterfeit contact lenses) under s 49(c) of the TMA read with s 107(c) of the Penal Code; a $6,000 fine (in default six weeks’ imprisonment) for the second charge (for abetting the offence by intentionally aiding Wong to have in his possession for the purpose of trade 30 boxes of counterfeit contact lenses) under s 49(c) of the TMA read with s 107(c) of the Penal Code; and a $1,000 fine (in default one week’s imprisonment) for each of the 12 charges under s 16(1)(b) of the HPA.

The Applicant appealed against the sentences while the Respondent appealed against the convictions.

The High Court decision

On appeal, the Judge held that s 49 of the TMA is a strict liability offence, but abetment requires knowledge or intention that the offence will be committed even if the primary offence itself does not require it. The Respondent was therefore not guilty of abetment by intentionally aiding Neo and Wong unless he knew that the contact lenses in question were counterfeit. However, there was no evidence to that effect. In addition, the Respondent had also raised a valid defence under s 49(i) of the TMA.

The Judge also found that it was unsafe to convict the Respondent for the 12 charges under s 16(1)(b) of the HPA and the Applicant’s case was not adequately proved, although it is contended by the Applicant that there was some ambiguity as to whether the Judge had considered s 16(1)(b) of the HPA to be strict in liability when he came to this conclusion.

In the result, the Judge allowed the Respondent’s appeal against the convictions and consequently dismissed the Applicant’s appeal against the sentences.

Submissions before the court The Applicant’s written submissions

The Applicant’s proposed answers to the three questions submitted for determination by this court are as follows: For Question 1, the statutory defences in s 49 of the TMA are not available to a person tried for abetting an offence under s 49(c) of the TMA. For Question 2, a person seeking to rely on the statutory defence in s 49(i) of the TMA must take all reasonable precautions before he can be said to have no reason to suspect the genuineness of the mark on goods to which a registered trade mark has been falsely applied. For Question 3, an offence under s 16(1)(b) of the HPA is one of strict liability, such that the Prosecution does not have to prove that the person charged with such an offence had knowledge that the health product in question was a counterfeit.

The Amicus Curiae’s written submissions

Prof Ng’s proposed answers are as follows: For Question 1, on the assumption that the provisos to s 49 of the TMA are defences, they are not available to an abettor of the person charged with an offence under s 49(c) of the TMA. For Question 2, the elements in s 49(i) of the TMA are inextricably linked as part of a composite enquiry which mandates the court to subject the accused’s assertion that he had no reason to suspect that the goods in question were falsely applied with a registered trade mark against an assessment of the reasonableness and adequacy of the precautions that were taken in the light of the relevant circumstances. For Question 3, s 16(1)(b) of the HPA may be construed as a strict liability offence in the sense that the Prosecution need not prove that the person charged with such an offence has knowledge that the health product in question is a counterfeit to secure a conviction.

The Respondent’s written submissions

The Respondent, who did not have legal representation in this criminal reference, filed written submissions to the effect that he was not guilty of any offence. He had frankly stated in his written submissions that it might be difficult to make sense of his arguments as he was not legally trained. At the hearing, the Respondent also declined to speak as he was in no position to offer any considered views on the legal questions under reference.

Our decision Analysis of Question 1 The mens rea requirement in s 49 of the TMA

For ease of reference, we set out again Question 1: Are the statutory defences in s 49 of the TMA available to a person tried for abetting an offence under s 49(c) of the TMA?

In answering Question 1, it is necessary to begin by considering the elements of the primary offence as well as the elements of the offence of abetment of the primary...