004-NLR-NLR-V-20-HASSIM-v.-MUSA.pdf
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Present: Wood Benton C.J. and Shaw J.
HASSIM v, MUSA.5—rD. G, {Grim,) Colombo, 4,466.
Merchandise Marks Ordinance, No, 13 of 1888—Charge under *. 8—Acquittal of accused—Forfeiture of property.
Where a person charged under section 3 of the MerchandiseMarks Ordinance, No. 13 of 1888, is acquitted, the Court cannotorder the 'forfeiture of the articles in relation to which the offencewas alleged to have been committed.
^HIS case was referred to a Bench of two Judges by WoodBenton C.J. The facts are fully set out in the judgment.
BflWJC, K'C. (with him F. M, de Saram), for the appellant.—Theumbrellas with the infringing trade marks are liable to forfeiture,although the accused was acquitted on the ground that he hadtaken all reasonable, precautions, and had no reason to suspect thegenuineness of the trade mark. The forfeiture is provided for bysection 3, sub-section (3) (iii.)» and by section 12.
Under section 12 a forfeiture may be made even if there is noconviction. Even where the owner is unknown the articles .maybe forfeited.
Even under section 3, sub-section (3), a forfeiture does not dependon a conviction. The Court must be satisfied* that an offence wascommitted. In this case there is no question whatever that therehas been an infringement of the trade mark.
The accused cannot sell the goods to any one. He would becommitting an offence if he does so. Under section 12 the goods
1917.
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1917
Hassim v.MuM
may be destroyed. Provision is also made as to forfeiture insection 15. Counsel referred to Commissioners of Trade andCustoms v. Bell;1 Sebastian on Trade Marks 684; Kerly, TradeMarks Act 72. The Court has power to forfeit the goods undersection 413 of the Criminal Procedure Code.
Drieberg, for the respondent.—The mere possession of the goodsis . not an offence. The goods must be sold or possessed with theintention to sell (see section 6 (1) (c)). The accused may possiblysend the goods over to the manufacturer who sold them to himt orhe may sell them where the mark is not protected.
Section 3, sub-section (3), makes it clear that the forfeiture can onlyfollow on a conviction for the offence with which he is charged.
This Ordinance does not provide for the forfeiture of goods undersection 15; the forfeiture is under the Customs Ordinance.
The Criminal Procedure Code does not apply to this case, as specialprovisions as to forfeiture are made in this Ordinance. Counselcited Kerly, Trade Marks Act 72; 78 L. T. 520; (1898) 2 Q. B. 19;(1890) 24 Q. B. D. 90.
Cur. adv. vult.
February 8, 1917. Shaw J.—
The accused in this case sold certain umbrellas manufactured inJapan, to which the complainant’s trade mark had been applied, andhad other similar umbrellas in his possession for the purpose of trade,which were brought before the Court by means of a search warrant.
He was charged under section 3 of the Merchandise MarksOrdinance, No. 13 of 1888, with the following offences: (a) forgingthe trade mark; (b) sell or exposing for sale goods to which aforged trade mark had been applied; and (c) falsely applying orcausing to be falsely applied to goods the trade mark of the.,complainant.
The District Judge has acquitted the accused on all the charges,the ground for the acquittal on charge (b) being that mentioned in.section 3 (2) (a) of the Merchandise Marks Ordinance, viz., that hehad taken all reasonable precautions against committing an offenceagainst the Ordinance, and at the time of the commission of thealleged offence he had no reason to suspect the genuineness of thetrade mark.
The question reserved for the decision of a Bench of two Judgesis whether, the accused having been acquitted, the District Judge canorder the forfeiture of the umbrellas. The Judge has decided thathe cannot. I am of opinion that the decision of the Judge is correct.
The provision for forfeiture is contained in section 3 (3) ofthe Ordinance. That sub-section is as follows:“ Every person
charged with an offence against this Ordinance may be tried by theDistrict Court or Police Court, and shall be liable (i.) on convictionby the District Court, to simple or rigorous imprisonment for a term,
1 {1902) A. C. $53.
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Ac.; (ii.) on summary conviction by the Police Court, to simple orrigorous imprisonment for a term, Ac.; (iii.) in any case, to forfeitto His Majesty every chattel, article, instrument, or thing by meansof or in relation to which the offence has been committed.”
The provision for forfeiture is a penal one, and must consequently,in accordance with the general rules of construction of statutes, beconstrued strictly against the forfeiture.
It will be noticed that the words of paragraph (iii.) of the sub-section are “ the offence,” not " an offence,” clearly indicatingsome offence that has been previously referred to. This can, in myopinion, only mean the offence mentioned at 'the commencementof the sub-section, namely, the offence with which the person ischarged, and which may be tried by the District Court or thePolice Court, with the consequences mentioned in the sub-section.This reading is borne out by the succeeding sub-section, whichprovides: " The Court before whom any person is convicted underthis section may order any forfeited articles to be destroyed orotherwise disposed of as the Court thinks fit.”
,We were pressed with an argument that section 12 of the Ordi-nance shows the Legislature intended any infringing articles to bedestroyed, because such articles when brought before the Courton a search warrant may be ordered to be forfeited even if, theowner is unknown, thus showing that a conviction is not alwaysnecessary before there can be a forfeiture. That section, however,by sub-section (2), only makes such articles liable to forfeiture incases where the goods are such that they would have been liable toforfeiture “ if the owner thereof had been convicted.” This section,therefore, seems to ine to be more in favour of the view taken bythe District Judge than against it.
The case of Commissioners of Trade and Customs v. Bell1 turns ona section in the New Zealand Trade Marks Act corresponding tosection 15 of our Ordinance. The section absolutely prohibits theimportation of infringing goods and, consequently renders themliable to be forfeited by the Customs on importation. It wasargued in that case that the preamble to the section showed thatit was not intended that there should be a forfeiture if the articlesbelonged to an innocent owner, because it indicated that the sectiononly intended to deal with the importation of goods which, if sold,would be liable to forfeiture under the Ordinance, and that thearticles, after importation by an innocent owner, might be so soldthat he would not be liable to conviction, and the articles there-fore not liable to forfeiture. The Court, however, held that thepreamble could not be so strained to defeat the obvious intentionof the Legislature,- that the importation of infringing articles shouldbe absolutely prohibited, and that the proper remedy for an innocentimporter Was to petition the Government, after the articles had been
1 lr. B. (1902) A. C. 663.
1917.
Shaw J.
Haasim v.
Musa
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im r.
Shaw J.
Saaain v*Mwa
seized, to allow him to resume possession of the articles after theyhad been rendered innocuous. This decision does not appear to meto have any direct bearing, on the point in issue in the presentcase, or to justify us in varying what seems to me to be the clearwording of section 3 (3).
A further argument was addressed to us that, even if the articlesare not liable to forfeiture under the Merchandise Marks Ordinance,they are 60 under section 413 of the Criminal Procedure Code.That is a general section authorizing the Courts to make ordersfor the disposal of property regarding which offences have beencommitted, and does not appear to me to be applicable to forfeituresto the Crown, and in any case is • not intended to vary a specificenactment relating to forfeiture of a particular class of articles. .
In- my opinion the decision on the question referred to lis is-correct, and the appeal on this ground should be dismissed.
Wood Renton C.J.—rl agree.
Appeal dismissed.