Public Prosecutor v Koh Peng Kiat
Judge | Chao Hick Tin JA |
Judgment Date | 24 November 2015 |
Neutral Citation | [2015] SGCA 58 |
Docket Number | Criminal Reference No 4 of 2014 |
Citation | [2015] SGCA 58 |
Hearing Date | 01 October 2015 |
Published date | 26 November 2015 |
Subject Matter | Offences,Criminal law,Mens rea,Trade marks and trade names,Abetment,Elements of crime |
Defendant Counsel | The respondent in person,Elizabeth Ng Siew Kuan as amicus curiae. |
Court | Court of Three Judges (Singapore) |
Year | 2015 |
Plaintiff Counsel | Francis Ng, Suhas Malhotra and Stacey Anne Fernandez (Attorney General's Chambers) |
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):
After hearing the parties as well as the
The questions referred to us arose from the High Court’s decision in
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:
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 was sentenced to a total fine of $38,000 (in default five months’ and 18 weeks’ imprisonment), being the sum total of the following:
The Applicant appealed against the sentences while the Respondent appealed against the convictions.
The High Court decisionOn 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)(
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:
Prof Ng’s proposed answers are as follows:
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 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(
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...
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