PP v Koh Peng Kiat: Trade Marks Act Defences & Health Products Act Strict Liability
In Public Prosecutor v Koh Peng Kiat, the Court of Appeal of Singapore addressed three questions of law referred by the Public Prosecutor regarding the Trade Marks Act and the Health Products Act. The court clarified the availability of statutory defenses under the Trade Marks Act for a person abetting an offense, the precautions required to prove lack of suspicion regarding trade mark genuineness, and whether an offense under the Health Products Act is one of strict liability. The court provided guidance on these issues, affirming that the defenses under the Trade Marks Act are not directly applicable to abettors but can be used to raise reasonable doubt, and that the Health Products Act does not require the prosecution to prove knowledge of counterfeit status.
1. Case Overview
1.1 Court
Court of Appeal1.2 Outcome
Clarification of legal principles; no change to original acquittal.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
The Court of Appeal clarified the availability of Trade Marks Act defences for abettors and strict liability under the Health Products Act.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| PUBLIC PROSECUTOR | Applicant | Government Agency | Legal principles clarified | Neutral | Francis Ng, Suhas Malhotra, Stacey Anne Fernandez |
| KOH PENG KIAT | Respondent | Individual | Acquittal upheld | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chao Hick Tin | Justice of the Court of Appeal | Yes |
| Andrew Phang Boon Leong | Justice of the Court of Appeal | No |
| Tay Yong Kwang | Judge | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Francis Ng | Attorney General's Chambers |
| Suhas Malhotra | Attorney General's Chambers |
| Stacey Anne Fernandez | Attorney General's Chambers |
| Elizabeth Ng Siew Kuan | Independent Practitioner |
4. Facts
- The Respondent was an optometrist who owned an optical shop which sold spectacles and contact lenses.
- The Respondent assisted Wong and Neo in purchasing contact lenses from Ah Seng.
- The contact lenses purchased by Wong and Neo through the Respondent from Ah Seng were found to be counterfeit.
- The Respondent faced charges under s 49(c) of the TMA and s 16(1)(b) of the HPA.
- The District Court found the Respondent guilty and convicted him on all charges.
- The High Court allowed the Respondent’s appeal against the convictions.
5. Formal Citations
- Public Prosecutor v Koh Peng Kiat, Criminal Reference No 4 of 2014, [2015] SGCA 58
- Public Prosecutor v Koh Peng Kiat and another appeal, , [2014] 4 SLR 703
6. Timeline
| Date | Event |
|---|---|
| Decision from which this appeal arose is reported at [2014] 4 SLR 703 | |
| Hearing of the parties and amicus curiae | |
| Judgment reserved | |
| Judgment delivered |
7. Legal Issues
- Availability of Trade Marks Act defences for abettors
- Outcome: The court held that ss 49(i) and (ii) of the TMA are, strictly speaking, not applicable to a person tried for abetting an offence under s 49(c) of the TMA. However, the abettor is always at liberty to adduce facts to raise doubts as to the case of the Prosecution against him and thus exonerate himself.
- Category: Substantive
- Precautions required to prove lack of suspicion regarding trade mark genuineness
- Outcome: The court held that the first two elements of “having taken all reasonable precautions” and “no reason to suspect the genuineness of the mark” in s 49(i) of the TMA are not independent requirements to be applied in a rigidly chronological or conditional order. Instead, they are inextricably linked as part of a single composite enquiry.
- Category: Substantive
- Strict liability under the Health Products Act
- Outcome: The court held that for an offence under s 16(1)(b) of the HPA, the Prosecution does not bear the legal burden of proving that the person charged with such an offence has knowledge that the health product in question is a counterfeit, but the accused shall be able to exonerate himself if he is able to discharge the legal burden of proving the elements in s 16(3) of the HPA.
- Category: Substantive
8. Remedies Sought
- Criminal conviction
- Fine
9. Cause of Actions
- Abetment of offence under s 49(c) of the Trade Marks Act
- Arranging to supply counterfeit contact lenses under s 16(1)(b) of the Health Products Act
10. Practice Areas
- Criminal Appeals
- Intellectual Property Litigation
- Regulatory Offences
11. Industries
- Retail
- Healthcare
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Public Prosecutor v Koh Peng Kiat and another appeal | High Court | Yes | [2014] 4 SLR 703 | Singapore | The High Court's decision to allow the appeal of Koh Peng Kiat against his convictions by the District Court gave rise to the questions referred to the Court of Appeal. |
| Cigar Affair v Pacific Cigar Co | High Court | Yes | [2005] 3 SLR(R) 633 | Singapore | Cited for the principle that an offence under s 49 of the Trade Marks Act is established without mens rea, and it is for the accused to satisfy either of the provisos stated. |
| Bachoo Mohan Singh v Public Prosecutor and another matter | Court of Appeal | Yes | [2010] 4 SLR 137 | Singapore | Cited for the elements that the Prosecution must show to establish that abetment has taken place. |
| Daw Aye Aye Mu v Public Prosecutor | High Court | Yes | [1998] 1 SLR(R) 175 | Singapore | Cited for the principle that the person who abets by intentionally aiding an offence must have done something which facilitated the commission of the offence, and he must also have done so intentionally and with knowledge of the circumstances constituting the crime. |
| Choy Tuck Sum v Public Prosecutor | High Court | Yes | [2000] 3 SLR(R) 456 | Singapore | Cited for the principle that an abettor who commits the offence of abetment cannot be said to have committed the substantive primary offence. |
| Kartar Singh v State of Punjab | Supreme Court | Yes | (1994) 3 SCC 569 | India | Cited for the view that all cases of abetment require proof of an intention or knowledge on the part of the abettor that the offence will be committed even if the main offence itself does not require it. |
| Callow v Tillstone | England | Yes | (1900) 83 LT 411 | England | Cited to buttress the conclusion that the Prosecution would have to prove that the abettor has knowledge of all essential matters constituting the primary offence, even in cases where the primary offender need not have knowledge of all such matters to be criminally liable. |
| Johnson v Youden and others | England | Yes | [1950] 1 KB 544 | England | Cited to buttress the conclusion that the Prosecution would have to prove that the abettor has knowledge of all essential matters constituting the primary offence, even in cases where the primary offender need not have knowledge of all such matters to be criminally liable. |
| Giorgianni v R | High Court of Australia | Yes | (1985) 156 CLR 473 | Australia | Cited to buttress the conclusion that the Prosecution would have to prove that the abettor has knowledge of all essential matters constituting the primary offence, even in cases where the primary offender need not have knowledge of all such matters to be criminally liable. |
| Trade Facilities Pte Ltd and others v Public Prosecutor | High Court | Yes | [1995] 2 SLR(R) 7 | Singapore | One of the issues concerned the correct interpretation of s 73 of the Trade Marks Act (Cap 332, 1992 Rev Ed) which was in pari materia with s 49 of the TMA. |
| Public Prosecutor v Tan Lay Heong and another | High Court | Yes | [1996] 1 SLR(R) 504 | Singapore | One of the issues concerned the correct interpretation of s 73 of the Trade Marks Act (Cap 332, 1992 Rev Ed) which was in pari materia with s 49 of the TMA. The court affirmed in whole Yong CJ’s conclusions. |
| Allard v Selfridge and Company Limited | England and Wales High Court (King's Bench Division) | Yes | [1925] 1 KB 129 | England | Cited in relation to the interpretation of s 73(a) of the TMA 1992. |
| R v Ewe Kai Cheah | Straits Settlements Law Reports | Yes | [1926] SSLR 158 | Singapore | Cited in relation to the interpretation of s 73(a) of the TMA 1992. |
| Shantilal Uttamram Mehta v Dhanji Kanji Shah | Bombay Law Reporter | Yes | [49] Bom LR 69 | India | Cited in relation to the interpretation of s 73(a) of the TMA 1992. |
| Public Prosecutor v Low Kok Heng | High Court | Yes | [2007] 4 SLR(R) 183 | Singapore | Cited for the summary of the construction of criminal statutes. |
| Yan Jun v Attorney-General | Court of Appeal | Yes | [2015] 1 SLR 752 | Singapore | Cited for the summary of the construction of criminal statutes. |
| Leu Xing-Long v Public Prosecutor | High Court | Yes | [2014] 4 SLR 1024 | Singapore | Cited for the common law presumption that mens rea is an essential ingredient of the offence. |
| M V Balakrishnan v Public Prosecutor | High Court | Yes | [1998] SGHC 169 | Singapore | Cited for the common law presumption that mens rea is an essential ingredient of the offence. |
| Public Prosecutor v Phua Keng Tong and another | High Court | Yes | [1985–1986] SLR(R) 545 | Singapore | Cited for the principle that the common law presumption of mens rea may be displaced expressly or by necessary implication. |
| Lim Chin Aik v Regina | Privy Council | Yes | [1963] MLJ 50 | Malaysia | Cited for the principle that the common law presumption of mens rea may be displaced expressly or by necessary implication. |
| Sweet v Parsley | House of Lords | Yes | [1970] AC 132 | England | Cited for the principle that the common law presumption of mens rea may be displaced expressly or by necessary implication. |
| Tan Chong Koay and another v Monetary Authority of Singapore | Court of Appeal | Yes | [2011] 4 SLR 348 | Singapore | Cited for the principle that a court should not lightly infer that Parliament intended, without good reason, to punish people without a guilty mind, or that such a result would suit the statute’s purpose. |
| He Kaw Teh v R | High Court of Australia | Yes | (1985) 157 CLR 523 | Australia | Cited for the principle that a court should not lightly infer that Parliament intended, without good reason, to punish people without a guilty mind, or that such a result would suit the statute’s purpose. |
| Rajapakse Pathurange Don Jayasena v The Queen | Privy Council | Yes | [1970] 1 AC 618 | Sri Lanka | Cited for the principle that the burden of proof referred to in s 107 of the Evidence Act is the persuasive or legal burden. |
| Tan Khee Wan Iris v Public Prosecutor | High Court | Yes | [1995] 1 SLR(R) 723 | Singapore | Cited for the principle that the burden of proof referred to in s 107 of the Evidence Act is the persuasive or legal burden. |
| Regina v Bezzina | England and Wales Court of Appeal (Criminal Division) | Yes | [1994] 1 WLR 1057 | England | Cited for the principle that language similar to that used in s 16(3) – “it shall be a defence for the accused to prove” – has frequently been read to be indicative of Parliamentary intention to transfer the legal burden of proof. |
| Pharmaceutical Society of Great Britain v Storkwain Ltd | House of Lords | Yes | [1986] 1 WLR 903 | England | Cited for the principle that language similar to that used in s 16(3) – “it shall be a defence for the accused to prove” – has frequently been read to be indicative of Parliamentary intention to transfer the legal burden of proof. |
| Regina v Johnstone | England and Wales Court of Appeal (Criminal Division) | Yes | [2003] 1 WLR 1736 | England | Cited for the principle that language similar to that used in s 16(3) – “it shall be a defence for the accused to prove” – has frequently been read to be indicative of Parliamentary intention to transfer the legal burden of proof. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 397(2) | Singapore |
| Trade Marks Act (Cap 332, 2005 Rev Ed) s 49 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 107 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 108 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 109 | Singapore |
| Health Products Act (Cap 122D, 2008 Rev Ed) s 16 | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 107 | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Trade mark
- Counterfeit
- Abetment
- Strict liability
- Mens rea
- Reasonable precautions
- Health product
- Optometrist
- Contact lenses
15.2 Keywords
- Trade Marks Act
- Health Products Act
- Abetment
- Strict Liability
- Counterfeit Goods
- Mens Rea
- Singapore Law
16. Subjects
- Criminal Law
- Trade Marks
- Health Products
- Abetment
- Strict Liability
17. Areas of Law
- Criminal Law
- Trade Mark Law
- Health Law
- Statutory Interpretation
- Criminal Procedure