Murray-Aynsley CJ:

In this case the appellant was convicted of having in his possession on 3 December 1952 goods bearing a counterfeit trade mark.

It was proved that on that date the appellant was attempting to export tins of pineapple bearing a label which was a colourable imitation of a label used by the complainants and which had been registered as a trade mark since 1 April 1947.The labels used by the appellant bore the name of Sin Heng & Co., a firm which went bankrupt, it seems, in 1941.The only defence of the appellant was that the labels were not counterfeit within the meaning of s. 12 of Cap. 157.For a definition of "counterfeit" one must look to s. 10 which deals with the offence of counterfeiting.To counterfeit a trade mark there must be a trade mark in existence which by s. 2 means (since the passing of the Trade Marks Ordinance No. 38 of 1938) a registered mark.Section 12 imposes penalties for using counterfeit marks as defined in s. 10. By s. 10 a counterfeit mark must be "so made" i.e. in imitation of a registered mark.The appellant contended that as a matter of fact the offending labels were made before the registration of the complainants' mark in 1947.The appellant said that in September 1947 he purchased the labels in question from one Tan Kwong Soon who had been one of the partners in the bankrupt firm of Sin Heng.This Tan Kwong Soon was not called but the Court was invited to infer that this label was one of those which belonged to the bankrupt firm in 1941.The learned District Judge considered the date at which a label is made to be immaterial. I do not agree with this. I do not think that a label which is not counterfeit when made can become counterfeit through the subsequent registration of a trade mark by someone else.He did not therefore make a finding of fact as to the date when the offending labels were made.

I think a new trial must be ordered.

New trial ordered.