TAI YIU WAH v. R.

IN THE COURT OF APPEAL

1993, No. 249
(Criminal)

Headnote

The Court of Appeal is bound by its earlier decision in R. v. Faisal Mohammad, Criminal Appeal 540 of 1992. R. v. Wan Siu-kei, Criminal Appeal 486 of 1992, and R. v. Chan Kein-wing, Criminal Appeal 33 of 1993 not followed.

IN THE COURT OF APPEAL

1993, No. 249
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant was convicted after trial before Y.W. Yung sitting as a Deputy Judge of the District Court on one charge of being in possession of forged dies contrary to section 76(2) of the Crimes Ordinance Cap. 200 as it stood at the time at which the charges were laid, and one charge of being in possession of forged banknotes contrary to section 76(1) of the Ordinance as it then stood. He was sentenced to four years' imprisonment in respect of the forged dies charge and to two years on the forged banknotes charge. It was ordered that one year of the latter sentence be served concurrently with the four years' sentence of which three years was to be served consecutively to a sentence of 18 months' imprisonment which the applicant is currently serving for handling stolen goods. He now applies for leave to appeal against both conviction and sentence.

2. The evidence for the prosecution was that during the course of a police raid on 13 March 1992 the applicant and three other persons, a woman and two men, were found in a room in the San Diego Hotel in Yaumati. Initially, the applicant denied to the police that he was a tenant of that room and stated that he rented another room in the hotel. When the police took him to the other room they found two women there. The women and the applicant were then brought back to the first room. After they had returned, another man, one Au-Yeung Kin-man, who was eventually named as a co-defendant of the applicant, entered. He was found to have a forged credit card on his person. On searching the room the police found three forged Reminbi one hundred dollar banknotes in a drawer of a wardrobe. These were the subject of the charge relating to the forged banknotes. They were found in a box containing a pair of glasses, two pawn tickets and a credit card. One of the pawn tickets and the credit card was in the name of the applicant.

3. In a cautioned statement to the police, the applicant admitted that the pawn ticket in his name and the credit card belonged to him. He sought to explain the presence of the credit card in that room by saying that he had dropped it there and had forgotten to look for it. He denied having seen the forged banknotes and stated that he did not know to whom the glasses belonged. He said that the name on the other pawn ticket was that of a friend whom he had asked to pawn the watch which was described on that ticket.

4. Twenty seven forged credit cards were found in the room. Of these twenty three were found in a cigarette packet. Three others together with pieces of paper which had written on them the names and numbers which appeared on the forged credit cards were discovered in another cigarette packet. One of the packets was discovered between the mattress and headboard of one of the two beds in the room while the other packet was found on the table between the two beds.

5. The applicant admitted that he had been sleeping in the room for about two months with the permission of Au Yeung Kin Man who was the registered occupant of the room. Contrary to his original oral assertion to the police, he later admitted in his written statement that he did not know who rented the other room to which he had taken the police. The applicant declined to give evidence or to call any witnesses.

6. The deputy judge bore in mind that Au Yeung and other persons such as hotel staff and visitors must have had access to the room. He expressed the view that the evidence against the applicant was stronger on the forged banknotes charge because of the discovery of the applicant's belongings in the same box as that which contained the forged banknotes. He rejected the applicant's explanation given in his statement to the police that he had dropped his credit card and had forgotten to look for it. He also rejected the applicant's denial of knowledge of the contents of the box. The deputy judge concluded that the applicant was in possession of the forged notes, knew them to be forged and had the intention and ability to reduce them into his physical control.

7. With regard to the possession of forged dies charge, the deputy judge ruled out the possibility that hotel staff or casual visitors would have left the 27 forged credit cards in the room. He found that in the light of the applicant's admitted usage of the room for two months he knew of the existence and had the intention and ability to reduce those cards into his control whenever he wised to do so. He therefore convicted the applicant on both counts.

8. It is now contended on appeal by Mr. McGuinniety, who appeared at the trial for the applicant, that the evidence against him was insufficient to found the convictions. He concedes however that there was a prima facie case in respect of each charge. He contends that in respect of the charge of possession of forged dies the evidence was merely that the applicant was present in a room where the forged dies were found, and that on the forged banknotes charge it was simply that his proven personal possessions were in the same box as the forged notes. However, the applicant's presence in the room was not "mere presence" as Mr. McGuinniety submits it was. On his own admission he had been sleeping there for two months. The finding of his personal belongings in the box with the forged banknotes was also evidence from which it could be inferred that he was also in possession of the other forged items found elsewhere in the room.

9. It is further contended that in his Reasons for Verdict the deputy judge did no more than recite the evidence and then state that he was satisfied beyond reasonable doubt that the applicant was in possession of the forged items. We do not consider that there can be any justifiable complaint as to the deputy judge's manner of setting out his reasons. He could do little more than state the evidence on the basis of which he concluded that the applicant must have been in possession of the forged banknotes and dies.

10. It is also contended that the deputy judge failed to consider that the applicant could have been a visitor to the room and may have had an entirely innocent reason for being there. By his finding of guilt the deputy judge had clearly dismissed that possibility. It was not necessary for him specifically to state that he had considered and rejected it.

11. We are satisfied that on the evidence before him the judge was fully entitled to come to the conclusion which he did. The application for leave to appeal against conviction by the first applicant is therefore refused.

Sentence

12. We adjourned the hearing of the application for leave to appeal against sentence until 12 May to enable Mr. Schapel for the Crown to locate a decision of this court that he thought might be of assistance to us.

13. At the adjourned hearing Mr. Schapel referred us to R. v. Chan Kein-wing and another, Criminal Appeal 33 of 1993 (unreported). In that case a differently constituted division of this court followed the majority decision of another division of the court in R. v. Wan Siu-kei Criminal Appeal 486 of 1992 (unreported).

14. However, we are unable to distinguish the facts in Wan Siu-kei from those in R. v. Mohammad Faisal, Criminal Appeal 540 of 1992 (unreported), a decision by which, in our opinion, this court is bound. We therefore decline to follow Wan Siu-kei and Chan Kein-wing.

15. The effect of our decision is that the trial of the applicant having occurred subsequent to an amendment of the Crimes Ordinance which repealed the old see 76(2) and replaced it with the new section 75, the applicant must, by virtue of Article 12(1) of the Bill of Rights Ordinance, have been rendered liable upon his conviction on the old section 76(2) offence to the lighter penalty provided by the new section 75 for simple possession of a forged instrument. The new section 68 of the Crimes Ordinance defines "instrument" to include a die.

16. Because the applicant was only sentenced to two years' imprisonment for the old section 76(1) offence, which section was repealed and replaced by the new section 100 of the Crimes Ordinance, the sentence for that offence is not affected since it falls within the maximum of three years' imprisonment provided for simple possession of forged banknotes.

17. In the light of what we have said concerning the sentence of four years' imprisonment imposed on the applicant for the forged dies offence we grant leave to appeal against that sentence and, treating the hearing of the application as the hearing of the appeal, allow the appeal, set aside the sentence and substitute for it one of two and a half years' imprisonment. The sentence of two years passed in respect of the forged banknotes offence remains undisturbed. We order that both sentences be served concurrently with each other but consecutively to the sentence of 18 months' imprisonment which the applicant is presently serving in relation to an earlier offence.