CHAN CHUEN-KAM and Others v. R.

1991, No. 186
(Criminal)

H E A D N O T E

The provision in article 12 of the Bill of Rights that "If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby" avails a defendant only if both the Bill of Rights and the provision for a lighter penalty were in force at the time when sentence was imposed by the trial judge.

IN THE COURT OF APPEAL

1991, No 186
(Criminal)

____________

_______________

J U D G M E N T

_______________

Kempster, V-P:

1. On the first day of this month we dismissed the applications of Chan Chuen-Kam and Chu Kwok-wah for leave to appeal against conviction and, having allowed the application, dismissed the appeal of Yip Man-kui. Our judgments describe the nature of the offences leading to such convictions. On the same day we heard the applications of Chan Chuen-kam, Yip Man-kui and Chan Hang-on for leave to appeal against sentence and today have heard submissions on behalf of Chu Kwok-wah, whose earlier application for leave to appeal against sentence had been abandoned and dismissed during November 1992, for an extension of the time prescribed for making a further such application. As the questions of law which he seeks to raise affect all the applicants we will deal with them at the outset.

2. On 17 April 1991 Chu was convicted of five offences; two of conspiring to forge bank notes, one of conspiring to forge travellers' cheques and two of conspiring to utter forged bank notes. They were committed between 28 July 1988 and 27 July 1989. Sentences of eight years imprisonment, all running concurrently, were passed upon him on 19 April 1991.

3. On 26 June 1992, by Ordinance No 49 of that year, sections 70(1) and (2) and 74(1) of the Crimes Ordinance (Cap 200), pursuant to which Chu and the applicants had been convicted and sentenced, were repealed and, effectively, replaced by the current sections 71 and 73. Although the nature of the crimes, somewhat differently described, is substantially the same as before, the maximum period of imprisonment which may be passed upon conviction on indictment is reduced from life to 14 years.

4. On behalf of Chu, Mr Poll invokes section 8 and Article 12 of the Hong Kong Bill of Rights Ordinance 1991 which became law on 8 June of that year; over seven weeks after Chu had been sentenced. That Article reads:

"(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby."

But since neither Article 12 nor the changed provisions of the Crimes Ordinance were part of the Law of Hong Kong when Chu was sentenced they cannot avail him. The words of the Article plainly relate to the function of the sentencing judge. I gain no assistance from the dissenting judgment of

Estey J in R. v. Milne (1988) 46 DLR 487. On the other hand, by its terms, the Article could have been prayed in aid had both the Hong Kong Bill of Rights Ordinance and the present sections 71 and 73 of the Crimes Ordinance been in force on 19 April 1991. Attorney-General v. Lee Kwong-kut Privy Council Appeal No 59 of 1992 (unreported) and, in this Court, [1992] 2 HKCLR 76; R. v. Lai Kai-ming Cr App No 296 of 1992 (unreported); R. v. Sze Yung-sang Cr App No 486 of 1992 (unreported). It does not assist Chu that Article 12 had become part of the Law of Hong Kong by the appellate stage. As Sir T.L. Yang CJ, giving the judgment of this Court in R. v. Lam Wan-kow and Anor [1992] 1 HKCLR 272, said at pp 277 and 278:

"The next question is whether or not s 2(3) of the Bill of Rights Ordinance is to be given retrospective effect. There is nothing in the Ordinance which indicates that it should be retrospective. That there is a presumption against retrospective operation of laws is a long established principle. And it is unlikely that the legislature in Hong Kong, having refrained from domesticating the provisions of the ICCPR in May 1976, decided in June 1991, and without clear and express provision, to do exactly this by means of retrospective legislation. 'Treaties and declarations do not become part of our law until they are made law by parliament' per Lord Denning MR in R. v. Chief Immigration Officer Heathrow Airport, ex parte Salamat Bibi [1976] 1 WLR 979 and 984. Further, the legislature expressly isolated six ordinances from the effect of the repealing provision of s 3 of the Ordinance for a period of 12 months from the date of the Ordinance coming into force: see s 14 and the Schedule. There would therefore appear to be little point in saving ordinances from present repeal or a revised satisfactory construction (s 3) or from claims for relief (s 6) if s 2(3) permitted these courts to reach back in time and apply the Ordinance to convictions come to in the past under the authority of those laws. The relevant law, as Mr Cross puts it, is the law, be it procedural or substantive, which prevailed at the trial. There cannot properly be separate bodies of law applicable at trial and at appeal.

The two applicants' convictions were perfectly lawful at the relevant dates. In our judgment, s 2(3) of the Bill of Rights Ordinance does not have retrospective application to rights and obligations which existed before it came into force."

Section 2(3) provides:

"In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and connected matters."

5. I would decline to extend time for Chu Kwok-wah to apply for leave to appeal against sentence.

6. Chan Chuen-kam was sentenced to 12 years imprisonment overall after conviction on six charges. He is now 44 years of age and has previous convictions for possessing a forged bank note and for possessing and using a forged travel document. For those offences he was sent to prison for 12 months on 6 November 1987. The trial judge described him as one of the original conspirators and as the general manager involved in marketing counterfeit materials abroad.

7. Chan Hang-on is now aged 33 years with previous convictions including the possession of implements for forging Hong Kong Identity Cards for which, in 1982, he was sentenced to 2½ years imprisonment. He was convicted by Deputy High Court Judge Evans on five charges and sentenced to eight years imprisonment overall. He had pleaded guilty. The judge described him as "the printer". His cautioned statements admitted "monetary greed".

8. Yip Man-kui, now aged 37 years, a police officer employed to detect and prosecute the sort of offences for which he was convicted, on seven counts, was sentenced to 13 years imprisonment overall. The judge so sentenced him on the basis that he had banded together with his criminal informants to profit from his acquired counterfeiting skills on the international market.

9. As was conceded in the course of the submissions made to us on 1 June these sentences were internally consistent with the relative wickedness of the several applicants and the plea of Chan Hang-on. Such a comparison the judge was in a much better position than we to gauge; as he was in relation to the overall gravity of the offences committed by the several applicants. I find no basis for interfering with the sentences he passed and would dismiss the three applications for leave to appeal against them.

Litton, JA:

10. I concur and have nothing to add.

Bokhary, JA:

11. I, too, concur and have nothing to add.