Shop-owner fined for selling fake phone accessories

A shop-owner has been fined €500 for selling counterfeit Nokia mobile phone covers after a court ruled that the fact he had bought the 24 covers from a sole trader who was not a usual supplier showed he was aware that they were fakes.

In 2005, Stephen Ritchie from San Gwann had been charged with offences under the Trademarks Act, knowingly selling counterfeit goods, receiving stolen goods and relapsing - apparently after the Nokia Corporation filed a criminal complaint to the local police, expressing its suspicion that he was selling counterfeit Nokia accessories from his shop.

24 mobile phone covers had been seized by the police in a search of the premises.

Ritchie had explained to the police, and the court, that he had bought them from a certain Eyad Abu Hishmeh for Lm 396 and had showed a receipt for “mobile phone accessories” to the magistrate.

Magistrate Marse-Anne Farrugia, however, observed that the receipt did not specify the amount and nature of these accessories. The court also observed that this was the first and last time that he had purchased supplies from Hishmeh and that he had not asked him for proof that the items were genuine.

The court had appointed Dr. Martin Bajada to provide his expert opinion on whether the items were genuine and quoted his conclusions as saying “none of the mobile covers examines are in conformity with the quality and packing of original Nokia products. Original Nokia products are superior in both quality and packing when compared with the item exhibited.”

The defence had asked for the removal of Dr. Bajada's 2009 report, pointing out that he had been convicted of forgery in the United Kingdom, years before, however the court dismissed the argument. The expert had been convicted of forgery in England some twenty years before, when he had been engaged to give an expert opinion on the authenticity of a signature, observed the court.

“This information had become public knowledge in 2012,” it noted, observing that no reference to the “past private life” of the expert had been made up till the final stages of the case.

The magistrate said that Dr. Bajada's report “constituted a statement of fact and not an expert opinion that the court must rely on or that the accused had no means of verifying and presenting counter evidence. Therefore there is no danger in the circumstances of justice not being seen to be done because the information emerges clearly from a simple examination of the acts and verification of the information passed on to the court by the expert.” The personal life of the court expert casts no shadow on the probatory value of his report, held the court.

The accused had failed to prove that he was not aware that the items had been fakes when he bought them, ruled the court. He had not asked whether the seller was an authorised agent, the receipt he was given was not itemized and Hishmesh was not well known as an agent for Nokia. The fact that the packaging of the mobile phone covers had no form of identification would have given rise to suspicion in any person seeing them, much more so to someone who regularly sold mobile phone accessories.

Ritchie was found guilty of knowingly selling making use of fake merchandise and breaching trademark laws. He was, however, cleared of selling stolen goods and relapsing after no evidence was brought to support those charges.

While noting Ritchie's previous convictions for theft and customs offences, the court also took into account the small amount of fake goods found. The court disagreed with the prosecution's suggestion that a conditional discharge be imposed as this would “simply be a slap on the hand,” instead opting for a €500 fine. It ordered the destruction of the mobile phone covers.