Court of Appeal President Chief Justice Dato Seri Paduka Steven Chong, sitting with Justice Michael Peter Burrell and Conrad Seagroatt, recently dismissed a company’s application for revision of fines, citing the sentencing court’s leniency.
The Intermediate Court on December 24 ordered Tradetech Sdn Bhd, whose director had pleaded guilty to a charge of trading infringing HP printer ink toner products, to settle a BND64,500 fine.
Earlier, parties argued on the fitting sentence for the court to take into account.
The company’s defence counsel Pengiran Shahyzul bin Pengiran Abdul Rahman contended that the prosecution’s aggravating points for the company’s minimal role in supplying government ministries, departments, and a medical centre with the infringing HP printer toners in 2017 and 2018 which they found to be compatible for use.
The prosecution, meanwhile, contended that the defendant company’s culpability was as much as its involvement in the operations.
On the issue of a fine to commensurate the offence, Prosecutor Shamsuddin bin Haji Kamaluddin urged the court to impose a deterrent sentence, by ordering the company to settle at least BND75,000, in the name of protecting intellectual property rights.
The defence party argued that a fine that was equivalent to the price of items involved in the charge ought to be enough. “Being convicted is punishment enough to my client as there are repercussions from the news report on the case which was made public,” the lawyer added.
Judge Harnita Zelda Skinner on handing the sentence, thought that the fine should be “calibrated on a per item basis”.
The court also took into account the defendant’s guilty plea at the first opportunity and pleas in mitigation, and balanced it out with the issues raised by the prosecution, on coming to the court’s decision to hand a fine based on a calculation of BND300 per infringing article.
The court also agreed to weigh the defendant company’s involvement in the operations at a full-scale.
Police were prompted by an HP official distributor who then found the company to be in possession of 215 toner cartridges at the business premises on July 28, 2018. Further probes and expert findings confirmed that the items were not genuine HP products.
The appellate court anticipated that the defendant’s annual profits would likely be BND79,000.
“On this basis, the fine could properly be regarded as lenient,” the court concluded. – Fadley Faisal