Public Prosecutor v Koh Peng Kiat

• Jurisdiction: Singapore
• Judge: Liew Thiam Leng
• Judgment Date: 15 August 2013
• Neutral Citation: [2013] SGDC 244
• Docket Number: DAC 5629/12 & ors
• Published date: 15 August 2013
• Year: 2013
• Citation: [2013] SGDC 244
• Plaintiff Counsel: DPP Mr Tng Sheng Rong
• Defendant Counsel: D/C Mr Gurdip Singh (M/S Gurdip & Gill)
• Court: District Court (Singapore)

District Judge Liew Thiam Leng:

The accused is facing 2 charges under section 49(b) of the Trade Marks Act (Cap 332, 2005 Rev Ed)(“TMA”) for abetting in the possession of 130 boxes of contact lenses where the registered trade mark “Freshlook Colorblends” had been falsely applied. In addition, the accused also face another 12 charges under section 16(2)(b) of the Health Products Act (Cap 122D, 2008 Rev Ed) for arranging for the supply of 130 pairs of counterfeit contact lenses purporting to be Freshlook Colorblends of varying colours. The prosecution proceeded on all the 14 charges and the accused claimed trial to the charges. At the end of the trial, the accused was found guilty and convicted for all the 14 charges and was fined a total of $38,000 in default 5 months and 18 weeks imprisonment. The accused is appealing against his conviction. The prosecution is appealing against the sentence imposed.

Prosecution’s case

The accused was the owner of an Optical Shop called Eye Cottage and has a partner Neo Teck Soon (PW13). The accused also has a friend Andy Wong Chow Fatt (PW12) who is in the contact lens trade. The accused had approached both PW12 and PW13 on the sale of Freshlook Colorblends contact lenses at a price which was below the market retail price of $22 per box. The accused told both PW12 and PW13 that he has this contact known as “Ah Seng” who could supply the contact lenses at a certain price.

In the case of PW12, the accused made arrangements for contacts to be made with one Ah Seng. Both PW12 and Ah Seng communicated by SMSes and it was agreed that PW12 will be able to purchase 350 boxes of the said contact lenses at $8 per box. PW12 never saw or spoke to Ah Seng. Subsequently, PW12 was informed by the accused to collect the contact lenses at the accused’s shop. When PW12 went to the accused’s shop to collect the 350 boxes, he was told by the accused that 320 boxes had already been sold and that only 30 boxes were left. Nevertheless, PW12 agreed to purchase the 30 boxes and he paid the accused $240. PW12 then contacted one Joseph Ng (PW3) who runs the optical shop Crystalite to confirm that he was still interested in buying 30 boxes of contact lenses at $8.50 per box. PW3 agreed to buy from PW12 and the goods were delivered and sold to him accordingly. PW3 then handed 24 boxes to another shop Azpec which he runs with his wife (PW5).

In the case of PW13, he and the accused used to frequent drinking sessions when they were partners as they were both classmates while attending an Optometry course at the Polytechnic. As a result of these drinking sessions, the accused had incurred debts owed to PW13. The accused then suggested to PW13 to buy the contact lenses at $10 per boxes for 100 boxes and that these lenses will be supplied by Ah Seng. The accused explained to PW13 that he will absorb $7.50 out of the $10 per box and that PW13 would only have to pay $2.50 per box instead of $10. The accused explained further that this arrangement would mean that the accused will be absorbing a total of $750 for 100 boxes which can go towards the reduction of his debt to PW13. Moreover, PW13 can sell the 100 boxes at a much higher price and the profits made would reduce the debt further. Although the accused had provided PW13 with Ah Seng’s telephone number, PW13 was unable to establish contact with Ah Seng. When PW13 informed the accused about this, the latter made arrangements for PW13 to collect the 100 boxes of contact lenses from Ah Seng at a bus stop along Yishun. Subsequently, on the appointed day and time as arranged by the accused, PW13 collected the boxes from a stranger (purportedly Ah Seng) at a bus stop in Yishun and paid $250. PW13 thereupon sold the 100 boxes of contact lenses to 2 partners (PW1 and PW2) who were running the shop D’Optique for $1000 at $10 per box. PW13 is aware that the price is below market price as he was working for a company H2Hub which deal in Freshlook Colorblends contact lenses and each box would cost between $12.70 and $14.70 when ordered in bulk of 300 to 500 boxes.

Meanwhile, as is the usual practice in the contact lens market, when the lens are found to be unsuitable whether for its colour or other reasons, retailers are allowed to send them to Ciba Vision Singapore, the registered owners of the trademark Freshlook Colorblends contact lenses for an exchange. For the 30 boxes of contact lenses which were sold by PW12 to PW3, 26 boxes of contact lenses were sent to Ciba Vision for an exchange and 4 boxes were seized by the Health Sciences Authority (HSA). Likewise, for the 100 boxes of contact lenses sold by PW13 to D’Optique, they were either exchanged with Ciba Vision or seized by the HSA or sold off.

The prosecution had tendered a table marked as “T” which spell out the details of the 100 boxes and 30 boxes of Freshlook Colorblends giving an account of the number of boxes which were tested by Ciba Vision Singapore or Ciba USA or HSA and the number of boxes which are in the custody of the HSA.

The Asia Pacific Director of Corporate Security at Novartis AG ( Ciba Vision is a subsidiary) Raymond Peh (PW5) gave evidence on the process of authentication of Freshlook Colorblends whenever they are sent to Ciba Vision Singapore for an exchange. When the contact lenses are returned to Ciba Vision upon an exchange by a retailer, Ciba Vision would scan the barcode on the boxes and if the information is different from their internal database, such boxes of contact lenses would not be authenticated. These boxes of contact lenses would be sent for testing to determine its authenticity either by Ciba Vision Singapore or to Ciba USA as in the present case. Some of the boxes seized by the HSA were also tested by the HSA. The results of the testing by Ciba Vision Singapore, Ciba USA and the HSA confirmed that the 130 boxes of Freshlook Colorblends of contact lenses seized from the shops Crystalite, Azpec and D’Optique were found to be fakes. The exhibit T show the number of boxes of Freshlook Colorblends contact lenses recovered from Crystalite, Azpec and D’Optique as well as the number of boxes which were tested by Ciba Vision Singapore, Ciba USA and the HSA. The remaining boxes were kept in the custody of the HSA as indicated in exhibit “T”.

The Group Product Manager of Vision Care which is part of Ciba Vision Singapore, Angelina Wee (PW14) gave evidence to confirm that the Freshlook Colorblends are sold to retailers at $22 per box and in the promotional packages, depending on the quantity ordered, the price range would be between $11.52 to $14.67. PW14 reiterated that the genuine Freshlook Colorblends contact lenses are available from Ciba Vision and that there was no authorisation by the company to allow the importation of these contact lenses from Malaysia into Singapore for sale. The sales representative of Ciba Vision Singapore, Chai Jun Chiang (PW15) also gave evidence to confirm that it was not possible to purchase a box of Freshlook Colorblends at $10 which was the price which was sold to PW13 for 100 boxes by Ah Seng through the accused.

At the end of the prosecution’s case, the court was of the view that the offences under s 49 TMA and s 16 of the HPA are strict liability offences ( please see paras 19 to 22). The court was satisfied that the prosecution had established a prima facie case for the calling of the accused to give his defence in answer to the 14 proceeded charges which if unrebutted would warrant a conviction. The court was satisfied from the evidence of the prosecution witnesses that there was sufficient evidence to show that the accused had abetted by intentionally aiding PW12 and PW13 in having possession for the purpose of trade 130 boxes of contact lenses to which the registered trade mark “Freshlook Colorblends” had been falsely applied under section 49(b) of the Trade Marks Act (TMA). Likewise, the court was satisfied that there is sufficient evidence to show that the accused had arranged for the supply of the 130 boxes of Freshlook Colorblends counterfeit contact lenses at a price which was well below the retail price in the market. This would have put the accused on enquiry that the goods may not be from an authorised source and hence, counterfeit products. There were no efforts made by the accused at all in ascertaining from Ah Seng as to the source of the contact lenses or where it had originated from. Nevertheless, the offences under the TMA and HPA are strict liability offences (which are dealt with below). Both PW12 and PW13 had bought the contact lenses through the accused. It was the accused who had made the arrangements for the purchase to take place. In the case of PW12, the accused had provided him with the contact details to Ah Seng. PW12 had not seen or spoken to Ah Seng at all except sending SMS messages to each other. Moreover, the accused gave evidence that it was Ah Seng who had contacted him to inform him that the bag containing the contact lenses were left in his shop. It was also the accused who had contacted PW12 to inform him that the contact lenses were ready for collection. Likewise, PW13 had given evidence that he could not contact Ah Seng with the telephone number given by the accused. It was the accused who had arranged for PW13 to collect the 100 boxes of contact lenses at a bus stop in Yishun. PW13 had stated that he collected the contact lenses from someone (purported to be Ah Seng) at the bus stop in Yishun as arranged by the accused. Pursuant to these 2 transactions, both PW12 and PW13 sold the contact lenses to optical shops run by PW1, PW2, PW3 and PW4. As can be seen from the facts, the 2 transactions involving PW12 and PW13 would not have been possible without the accused’s abetment. The court noted that there was an error in the number of pairs of contact lenses in the charges HSA 25 and HSA 28/2012. In regard to HSA 25/2012, the number of pairs of contact lenses (Gray)...