Public Prosecutor v Qiao Mu

• Jurisdiction: Singapore
• Judge: Edgar Foo
• Judgment Date: 13 March 2020
• Neutral Citation: [2020] SGDC 59
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No. 939832/2017 and 1 other
• Published date: 26 March 2020
• Year: 2020
• Hearing Date: 06 March 2020,12 April 2019,11 September 2018,08 April 2019,22 October 2019,09 April 2019,10 September 2018,07 February 2020,23 October 2019,10 April 2019
• Plaintiff Counsel: DPP Haniza Abnass
• Defendant Counsel: Mr Nicholas Tang Tze Hao and Ms Jolene Gwee Jia-Min (Farallon Law Corporation)
• Citation: [2020] SGDC 59

District Judge Edgar Foo: Introduction

The Accused, a 39 year old male Chinese National and Singapore Permanent Resident, had claimed trial to the following charges:-

2ND CHARGE (Amended) – DAC 939832-2017

You … are charged that you, on the 13th day of March 2017 at or about 2.05pm, at No. 1 Yishun Industrial St 1 #04-26 A’Posh Bizhub, Singapore 768160, did have in your possession for the purpose of trade, the following one hundred and ninety-eight (198) goods, to which the respective trade marks registered in Singapore has been falsely applied on them:-

and you have thereby committed an offence punishable under Section 49(c) of the Trade Marks Act, Chapter 332.

3RD CHARGE (Amended) – DAC 939833-2017

You… are charged that you, on the 13th day of March 2017 at or about 2.05pm, at No. 1 Yishun Industrial St 1 #04-26 A’Posh Bizhub, Singapore 768160, did have in your possession for the purpose of trade, the following two thousand six hundred and fifty-four (2654) goods, to which the respective trade mark registered in Singapore has been falsely applied on them:-

and you have thereby committed an offence punishable under Section 49(c) of the Trade Marks Act, Chapter 332.

The Relevant Statutory Provisions and the Punishment Prescribed by Law

Section 49 (c) of the Trade Marks Act provides that any person who 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.

As regards to the definition of “false application”, Section 47(2) of the Trade Marks Act states as follows: (2) For the purposes of this section and sections 49, 53 and 53A, a person falsely applies a registered trade mark to goods or services if— (a) without the consent of the proprietor of the registered trade mark, the person applies the trade mark or a sign likely to be mistaken for that trade mark to the goods or services; and (b) in the case of an application to goods, the goods are not the genuine goods of the proprietor or licensee of the registered trade mark.

Section 47(6) of the Trade Marks Act also provides that “in a prosecution under this section or section 49, the burden of proving the consent of the proprietor lies on the accused”

During the course of the trial, the Prosecution had informed me on 10 April 2019 that they did not wish to proceed with DAC 939833-2017 against the Accused and they had applied for a discharge not amounting to an acquittal in respect of the said charge. The Defence Counsel did not object to the Prosecution’s application and I did order a discharge not amounting to an acquittal in respect of DAC 939833-2017 on 10 April 2019.

As for DAC 939832-2017, at the conclusion of the trial, I found the Accused guilty and convicted him of the charge. On 6 March 2020, I imposed a sentence of 3 month’s imprisonment on the Accused for DAC 939832-2017 after considering the Prosecution’s submission on sentence and the Defence’s mitigation plea.

As for DAC 939833-2017, the Prosecution applied for a Discharge Amounting to an Acquittal (“DATA”) for DAC 939833-2017 on 6 March 2020 and I granted the Prosecution their application accordingly.

I hereby set out my reasons for both the conviction and sentence.

Agreed and Undisputed Facts

In the present case, both the Prosecution and Defence have agreed on certain facts in order to reduce the areas of disputes and they have tendered an Agreed Statement of Facts¹ stipulating certain agreed facts.

The salient agreed facts are as follows:- The Accused is the sole proprietor of the business XKoo Tech, which is in the business of selling, inter alia, electronics products and he operates XKoo Tech out of the premises located at 1 Yishun Industrial Street 1 #04-26 A’Posh Bizhub Singapore (“the premises”). The Accused registered XKoo Tech sometime in 2013 and sold mobile phone accessories such as mobile phone casings, phone batteries, cables and chargers, and screen protectors online. The business of XKoo Tech increased over the years since 2013, with the Accused importing goods from various suppliers in the People’s Republic of China. The Accused would look for suppliers from Shenzhen, China and would fly to Shenzhen to view the wares. The Accused’s business was carried out online, and items would be sold online platforms such as Lazada, Qoo10, and Carousell using the seller ID “ePlaza” (for Lazada and Carousell) and “ePlaza.sg” (for Qoo10). The Accused was the sole person in charge of the accounts tied to these seller IDs. The Accused would list the various items offered for sale on these 3 platforms. When a customer purchased an item from the Accused via any of the online platforms, the Accused would make arrangements for the item to either be delivered to the customer, or for the customer to collect the item at the premises. On 13 March 2017 at about 2.05 pm, acting on information received, Station Inspector Ong Chee Hien, a police officer attached to the Intellectual Property Rights Branch (“IPRB”) of the Criminal Investigation Department (“CID”), together with a party of police officers, conducted a raid on the premises. At the time of the raid, the Accused was present and at the premises. In the presence of the Accused, a search was conducted and the items seized included the following:- 2,654 pieces of Samsung products 62 Apple Magsafe Power Adapters 23 Apple Power Adapters 22 Apple Earpieces 58 Apple USB Cables 36 Apple Iphone Batteries 5 Apple Micro USB Adapters 13 Beats Headphones The Accused accepted that items b. to h. were in his possession for the purposes of trade. In the course of the raid, the police officers also seized the following items, which contained records of XKoo Tech’s business:- 1 Acer laptop with charger 1 stack of documents In relation to DAC 939832-2017, the following 198 Apple products which were subsequent examined by Ying Yi Lian Elaine (“PW2”), the IP Enforcement Manager for Apple Inc for Southeast Asia Pacific (“Apple”) :- The above registered trademarks were valid and subsisting at the time of the seizure.

The Prosecution’s Case

The Prosecution had called on 3 witnesses to give evidence on their behalf in their case against the Accused. They are: PW1 – Senior Investigation Officer Gordon Chay, Criminal Investigation Department, who is the investigating officer in charge of this case PW2 – Ying Li Lian Elaine, the IP Enforcement Manager from Apple Inc PW3 – Heng Guey Yann Thomas, Assistant Manager, IM Service Operations, Samsung Asia Pte Ltd

PW1 and PW2 had given evidence in relation to DAC 939832-2017 while PW3 was Samsung’s representative who gave evidence in relation to DAC 939833-2017. PW2 was Apple’s representative and expert who had examined the 198 Apple products which were seized by the police (“the Goods”).

In addition to the 3 witnesses, the Prosecution had also tendered a total of 52 exhibits which included PW2’s Examination Report² on the 198 Apple products.

The Prosecution’s case is simple. The Examination Report prepared by PW2 in P32 (“the Examination Report”) establishes that the Goods are counterfeit Apple products and have falsely applied trade marks belonging to Apple. The Accused had also in the Agreed Statement of Facts admitted that he possessed the Goods for the purposes of trade³.

The Prosecution’s position is that the Accused had purchased the Goods from unknown suppliers in China without taking reasonable precautions to determine whether the Goods were genuine. There were also red flags in the pricing and packaging of the Goods which should have led the accused to question the authenticity of the Goods⁴.

PW1’s evidence

PW1 had testified that he was a senior investigating officer with the IPRB and he had been working with the branch for 2 years⁵. On 13 March 2017, PW1 and his colleagues raided the premises. They had acted on information that the premises was involved in the selling of counterfeit items⁶.

During the raid, PW1 and his colleagues seized 3 brands of products which they suspected were counterfeit – namely Beats, Apple and Samsung products⁷. The seized products were taken back to their office and a seizure report was lodged⁸.

After items were seized, the police invited the different rights owners to examine the seized goods⁹. For the Goods, the rights owners informed the police that the Goods seized were all counterfeit¹⁰.

As regards to the Accused’s invoices or contracts with his suppliers in relation to the seized products, PW1 was not able to find any such documents from the items seized¹¹. PW1 was only able to find invoices for the Accused’s daily operation whereby customers had placed orders from him. A forensic preview of the laptop which was seized from the Accused also showed only invoices relating to the Accused’s day to day operation in his laptop¹².

PW1 did ask the Accused as to where he got the seized products from as well as the name of his suppliers and also to provide whatever invoices that he had but the Accused did not produce any invoices to PW1¹³.

PW1 also testified that based on his investigation and the Accused’s statement to him, the seized items had originated from Shenzhen China from a place...