About Our Criminal Department
1. “Intellectual Property Criminal” Department
The Department specializes in criminal cases of suspected copyright infringement, trademark infringement, violation of the Trade Descriptions Ordinance, etc. It is led by Mr. Benny Kong, senior partner of this firm, and Mr. David Tsai, a partner of this firm.
Mr. Benny Kong and Mr. David Tsai focus on intellectual property legal services, and have practiced for more than 20 years. They have rich practical experience in criminal cases, and provide professional advice and services to companies and individual persons after being requested by the Hong Kong Customs and Excise Department to assist in investigations, arrests and prosecutions, so as to protect their legal rights and interests.
2. Customs Shop Search
If, without the company’s knowledge, officers of the “Hong Kong Customs and Excise Department” enter the company’s office or shop with a search warrant to search for items that infringe on registered trademarks or copyrights, or to arrest the person in charge of the company, the company should:
- Seek legal advice from a solicitor.
- Calmly handle Customs officers searching for evidence in the office buildings or shops.
- Afterwards, take the initiative to make an appointment with Customs officers to clarify the incident.
3. Customs Confession
In front of sudden incidents, most companies will be caught off guard. For the search warrant, the company and its person in charge must of course work together with Customs officers. After search, the Customs officer may record the search process, especially the answer of the person in charge. Afterwards, the Customs officers may invite the company’s responsible person and related persons to the Customs Building to make a confession. For the company, this moment is a very important “turning point.” If the company does not handle it properly, the confession will greatly affect the criminal liability of the company and the person in charge. When the person in charge and salesperson confess, they can consider the following actions:
- He can choose to voluntarily answer each question to the Customs officer.
- The person in charge of the company may consider keeping silent and not answering interview questions. For each question, the person in charge may consider answering with “Keep silence and not willing to answer”. Even so, the person in charge of the company still needs to work together with Customs officers to make a confession.
- The person in charge should contact a solicitor immediately to discuss the matter. If the person in charge has an “unknowing” reason for the defense, they should prepare a document with the solicitor and explain the ins and outs clearly. After that, he should write to the Customs to request a meeting and provide information to assist the Customs in the investigation.
4. Notes for Arrested Persons
In order to provide information on the questions asked by the Customs officers “under alert” for the responsible person and the salesperson, our firm has compiled the following frequently asked questions by the Customs officers for reference:
- Would you like to answer the question I asked?
- Do you have difficulty in reading and writing Chinese?
- Do you want to write your answer to the question by yourself or someone else?
- How long has the company been operating?
- What are the details of the purchase of suspected infringing products obtained from the seizure?
- What are you responsible for in the company?
- Who is the person in charge of the company?
- Have you been authorized by the trademark holder to sell the suspected infringing products?
- Have you verified the authenticity of the suspected infringing products you are selling?
- Do you have anything to clarify or add to the Customs?
5. Defend or Plead in Court
After being prosecuted by the “Hong Kong Customs and Excise Department”, the first hearing will usually be held in a certain tribunal a few weeks later. In the first hearing, the defendant can choose to “plead guilty” to the court. Generally speaking, prior to the first hearing, the defendant has quite “limited” information about the main prosecution. They generally only have their own warning statements (and other defendants’ warning statements) provided to the “Hong Kong Customs and Excise Department”. Other major evidences owned by the “Hong Kong Customs and Excise Department”, including “expert inspection reports”, “confessions from Customs officials,” copyrighted works (in case of copyright infringement) and/or registered trademark certificates, etc. are all unavailable. According to our experience, in most cases, the defendant is not provided with all the prosecution documents prior to the first hearing. Without all the prosecution documents, how can the defendant know the strength of the prosecution evidence from the “Hong Kong Customs and Excise Department”? Only when the defendant pleads not guilty in the first hearing, the “Hong Kong Customs and Excise Department” will provide the defendant with all the above-mentioned prosecution documents. As seen, unless the defendant is determined to close the case in the first hearing, they will make a “no guilty plea” in the first hearing, and then decide to “plead guilty” or “not guilty” after obtaining all the prosecution documents in the first hearing. Only in this way can the defendant take the following more rational actions:
- After reviewing all the prosecution documents provided by the “Hong Kong Customs and Excise Department”,
- if the defendant feels that the chances of a successful plea and not guilty are low, the defendant can “plead guilty” only at the second hearing. However, if the prosecution evidence is found to be insufficient, for example, the expert witness has technical problems or the copyright author does not attend the hearing, etc., the defendant can discuss the defense strategy with his lawyer.
- Actually, in most cases, the defendant is not just one person, but two or more. In this case, the defendant can discuss and submit a settlement proposal to the “Hong Kong Customs and Excise Department”(if necessary), for example, the first defendant “plead guilty” and the second defendant “escaped”, and so on.
6. Arrested by Customs Officers at the Exhibition
The “Quick Action Plan” is a joint anti-infringement plan established by the Hong Kong Customs and Excise Department and the Hong Kong Industrial and Commercial Brand Protection Front, for alleged infringement of copyright and/or registered trademarks at the exhibition. If an exhibitor is suspected, searched and/or arrested by the Customs at the exhibition, he (and the person in charge) may be immediately sent to the Customs Building at North Point for investigation. After investigation, confession and other procedures, the suspected infringing exhibitor may be prosecuted. If the suspected infringing exhibitors need assistance, they should contact a lawyer as soon as possible to seek legal advice. Especially prior to the confession, if the suspected infringing exhibitors can know their rights and avoid making or disclosing evidence that is harmful to themselves under the emergency situation of “exhibition-arrest-chaos-unfamiliarity”, then a lawsuit may be avoided. Copyright infringement is a very technical crime. If the prosecution can be successfully challenged technically, such as in the existence of copyright or the integrity of copyright ownership, the defendant exhibitor may be able to avoid the misfortune of being prosecuted. Our firm has rich knowledge and experience in handling cases of arrests for alleged copyright and trademark infringements at exhibitions. This is also the reason why we set up our office near the Wan Chai Convention and Exhibition Center.