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SHIPBUILDING MATERIALS, SHIP OHANDLER3
HARDWARE MERCHANTS.
PHONE CENTRAL No. 1116.
If
{
Wing Woo street
TEL Central 25 -
THE HONGKONG TELEGRAPH.
TUESDAY, AUGUST 28, 1928...
DAIRY FARM BOTTLES. is no longer open. As is stated in IX Halsbury, p. 568 foot note (P) "under this subsection an inton tion to defraud (1.e. to deceive) is not a necessary Ingredient of the offence"
CHINESE DAIRY FINED.
The case in which the San Hang Leo Dalry was proceeded against. on two counts for selling milk in Dairy Farm bottles, was conclud- ed yesterday afternoon, when Mr, R. E. Lindsell dismissed one of the summonses, and imposed a fine of $25 on the other.
In doing so his Worship sald: "I impose a nominal penalty be cause there is no evidence that the defendant had any deliberate Intention of deceiving anybody, That I find is not the essence of this offence."
The two charges against the de- fendant firm were that they had in their possession for sale, or for the purpose of irade, certain milk' on which a false trade mark was used, and that they used on that milk a false trade description.
to
of its supply of milk from the Cheung Lec. Laat year the Hang Leo went bankrupt and it was bought over in public auction by the Cheung Lee. The business of the how Arm, which is now styled San Hang Leo amounted to a stand- In Order to Oblige,
ing order for 1,100 bottles per day, Mr. Lo, however, attempts to in addition to which the shop distinguish between the facts of enjoyed n daily sale by way of this case and those of the two retail over the counter of over the ground 200 bottles. Of this sale about already quoted on that there was here no actual sale seventy per cont was to Europeans, of one man's goods in another's including members of the Police container, but a more sale of milk Force and a certain number of During the summer months and the provision of a Dairy Farm bottles to the Military. bottle in order to oblige a single
Against this view, their own supply was insufficient customer.. however, stands the finding on de- to cope with the demand and the fendant's premises of no less than dairy had to purchase milk from, 33 other Dairy Farm bottles, 21 of A. Sheung, and within the last tivo which were obviously, ready for months they bought as many as On August 9, when the police Castro's bottle was used. use in the same way that Mrs. 1,600 bottles through, that firm, of a searched the premises, the defend- Here is clear evidence system, a system which though unta had then about fifty bottles not designed to deceive, not indeed due to be returned to A. Sheung. likely in most cases to deceive, If any bottle was broken or lost, may obviously in certain circums-witness said that a charge of ten
cents was mada by A. Sheung, iances have that effect.
At a previous hearing, Mr. M. K. Lo, solicitor for the defence,
Hence I find that a case has been
Asked for Dairy Farm Milk. had argued that his clients had
answer, Mr. R. Emade out against the defendant
On August 8, a Chinese entered no CRSO Wadeson, who represented the firm on this second charge. quoted
Mr. Lo anid that before he put his shop and asked for Dairy Farm Dairy Farm Company,
to not obtainable. In about ten lengthy authorities to show that his client Into-the witness-box, to milk. He was told that that was ease had been made out against give evidence he would like
quoto an observation from the minutes the man returned with a the defendants,
In pursuance of a previous In-case of Buddy Lucas, 1891, 12, brown paper parcel containing timation, is Worship, yesterday. B. 408, or the reason that as he two Dairy Farm bottles and wit- understood his Worship's decision ness, after ascertaining if the gave a decisien as follows:
As regards the first summons on the second summons which he bottles were clean, supplied that Witness said that as a matter which charges the defendants had just made, his Worship had customer with milk.
not excluded from it the possibility under Section 3 (1) d. with apply-of the defence being able to of general routine, a customer ing false trade description to satisfy his Worship that this sale taking away one of their bottles half pint of their own milk by of milk in someone else's container would have to deposit ten cents bottle. Never had they selling it in a Dairy Farm bottle. was an isolated one and was not for a It is clear that by the provisions part of a system. If his Worship charged sixteen cents, either of Section 5 S. 5. 1 (c), 2 & 3 the was antished niler listening to the deposit for the bottle or when the offence of such false application evidence as a whole, that there was bottle was sold outright. Witness is complete where any container no systematic saic by this farm of added that during the time he was bearing a registered mark is used their own milk in the Hongkong in the shop on August 8 he never in a like manner without the con- Dairy Farm's bottles at all, then saw any lady enter to buy milk. sent of the owner of the mark.
he would ask his Worship, to find, Mr. Lo asked whether witness Here it is obvious that such as a question of fact, that there agreed that if he gold a bottle of had been no application of a false milk for twelve cents and threw consent was never given.
Thu, defence then can only rely description. If there was no ap-in" a bolile for which they would. plication of a false description, eventually have to pay ten cents, on the words at the end of Section then obviously, they need not go they were really solling the milk 3. S. S. 1 "unless he proves that he acted without intent to defraud."
of
a
further.
case, For
an
for two cents. Witness agreed.
ns
In answer to Mr. Wadeson wit- ness said that the firm owned sixty cows and to produce the supply of 1,300 bottles of milk daily forty-five cows had to be in milk. The dairy had its own farms Causeway Bay,
at
in
Physical Possession. From the case of Starey v the Chilwerth Gunpowder Coy. (24
Referring to the authority quoted 12. 1. D. 90-54 J. P. 436), it is clear that intent to defraud in this by Mr. Wadeson, Mr. Lo, said that connexion means intent to induce case was quoted in another mat the purchaser to take something ter on which he would address
the pre- Reasonable Precaution. that he does not know he is taking his Worship at the end of the (Archbold XXVth Edition' p. 1212), present
relying on
Witness next gave evidence of or as Mathew J. put it in the sent he was
the minimum number of bottles not ap- course of his judgment in that authority which contained the case "the intent is implied, from preposition whether or
plication within the meaning of in his shop at any time and the least 400. the delivery to the customer Homething different from what he the Act was physical or in the Court understood him to say that
invoice sent along with the goods, the number was expected," etc."
After quoting from his authority Asked why he did not challenge in substantiation of the point that Mr. Thomson's evidence to the something more was contemplated effect that there were about 100 than actual physical possession to bottlen in the shop when the Mr. Thomson constitute an offence, Mr. Lo anid search was carried out, witness that herein was required some suggested that n Dairy Farm bottle, the presumpthing more than the mere putting should be recalled.
Both Mr. Thomson and Sergeant tion of intent to defraud would at of milk in a container bearing a once have been established and trademark before the intention to Rozeskwy were re-called on the onus of disproving that pre-deceivo was proved. There must question of the number of botlice Isumption thrown on. the defence. be some limit to the construction in the dairy at the time of the As it is, however, the evidence of the Section quoted and there search. Neither witness agreed of Mrs. Castro goes the whole way were abundant judicial authorities that there were as many as four to negativing the said presumption us to the scope of the Merchandise hundred bottles in the shop at the of intent on, the defendants' partMarks Act.
Intent to Defraud.
Had then the prosecution proved no more than that defendants, had sold a bottle of their own milk in
Lime.
the
Mr. Wadeson at the end of the to induce her, their customer; to What he would be trying to take something other than what prove for the defence was that evidence submitted that the de- she was expecting. She was ex-this was not a continuous act of fendants had to prove that they defendant dairy in the had taken a reasonable precaution. pecting San Hang Lee milk and the sho got it.
aense that it was made a regular The fact that the bottles of the Therefore I hold that on this habit to utilise Hongkong Dairy Dairy Farm were mixed up with summons the defence has, no case Farm bottles for the sale of their to answer, and the summons is milk. dismissed.
mark."
Defendant's Evidence.
the defendants and other, bottles on the counter ready for use and that the milk was in bulk showed that the defendant had not taken
Wong Man-hing, the proprietor euch precaution, of the defendant dairy, said that'
Touching on the question of
As regards the second summons the provisions of Section 3 (2) of the Ordinance seem to include the following absolute prohibition
he was formerly employed as having acted innocently Mr. Wade- "thou shalt not except with his servant to Mr. J. W. Franks, Sup- son argued that innocence in a consent sell thine own goods in erintendent of Prisons, Ile re- case like the one before the Court a container bearing another man'u signed from that post for the must be construed to read as in- express purpose of taking over his advertence or mistake. The de- This view is abundantly sus-father's business, which was first fendants had told the Court that tained, by the decisions in the started in 1860. The "Cheung he had filled Dairy Farm bottles then with his own milk, and that was cases quoted by Mr. Wadeson Lee," as the business was Wood v Burgess (01 L.T.R. 593 and called, was the first of its kind neither Inadvertence nor mistake.
Mr. M. K. Lo made a brief ad- 54 J. P. 925) and Stone v Burnham established in the Colony, and it (103 L. T. R. 377 and 74 3, P. 456). included the privilege of supplying dress in which he touched entirely In both cases it was obvious that milk to the Naval Hospital up till on the Ordinance and authorities there was no intention to deceive the year when the Great War broke connected with the case. He asked customers (and indeed it was most out. There was another firm styled his Worship to say, why the de-
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(Continued on Page 11.) been deceived. This line of defence Lee was obtaining three quarters
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