R v Hafeez Sheikh, Saqeb Sheikh, Junaid Sheikh

Date

8 March 2004

Legislation

ss.92(1)(b), 92(1)(c) Trade Marks Act 1994

Keywords

Conspiracy to Defraud; Counterfeit Goods; Trade Marks; Guilty Pleas; Power of Court to Vacate a Plea; Confiscation Proceedings; Withdrawal of guilty plea

Counsel

D Groome for the Crown, N Gerasimidis for Hafeez Sheikh, A Davis for Saqeb and Junaid Sheikh,

Solicitors:

Unknown

Judge:

Mantell J.

Court:

Court of Appeal (Criminal Division)

Reported:

[2004] 2 Cr App R 13, (2004) 148, S.J.L.B. 352, [2004] EWCA Crim 492

Summary

Following the seizure by Trading Standards Officers of counterfeit and illicit mobile phone facias, the 3 Defendants (D) were found to be involved in a company which was responsible for designing, commissioning the manufacture of, importing, and selling counterfeit and illicit goods. The 3 Ds were charged with various counts of conspiracy to defraud, and using a trade mark without authority contrary to ss.92(1)(b) and (c) TMA 1994.

Each of the Ds pleaded guilty to certain counts which proved acceptable to the Crown, leaving the remaining counts to lie on the file on the usual terms. However, the sentencing of all 3 Ds was put back and the Crown served a restraint order which made plain its intention to pursue confiscation proceedings. The 3 Ds all applied to vacate their guilty pleas. The applications were refused and the Ds appealed to the Court of Appeal.

Leave to appeal was granted on the one ground that no warning had been given to the Ds as to the possibility of confiscation proceedings being commenced. The Appellants main argument was had they been aware of the possibility of such confiscation proceedings they would not (due to the potential sums they faced to lose) have pleaded guilty but would have "put themselves upon their country" i.e. pleaded not guilty.

Decision

• It is well accepted that the court retains a residual discretion to allow the withdrawal of a guilty plea where not to do so might work an injustice. Commonly, this discretion is reserved for cases where there is a doubt that the plea represents a genuine acknowledgement of guilt.
• The discretion to allow a change of plea from guilty to not guilty must be exercised sparingly.
• The Judge who refused to vacate the pleas found that the Ds had been properly advised as to the nature of the offences and what it was necessary for the prosecution to prove before they could be found guilty. He found that the Ds were freely confessing their guilt.
• The possibility of confiscation proceedings could have no bearing on their acceptance of guilt.
• For the appeal to succeed the Appellants must show that the Judge took account of matters which he should not have or that he exercised his discretion in a wholly unreasonable manner. The Ds failed to demonstrate either of these flaws.

Accordingly, the appeals were dismissed.