HKSAR v. LEUNG KA LUN

CACC88/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO.88 OF 2002

(ON APPEAL FROM DCCC NOS.586 & 759 OF 2001)

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REASONS FOR JUDGMENT

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Hon Suffiad J (giving the judgment of the Court) :

1. The applicant was convicted after trial in the District Court by H.H. Judge Chua of one count of Possession of a False Instrument contrary to section 75(2) of the Crimes Ordinance, Cap.200 and was sentenced to three years' imprisonment. The applicant now applies for leave to appeal against that sentence of three years' imprisonment.

2. After hearing submissions from both counsel, we granted leave, treated the application as the hearing of the appeal, set aside the original sentence of three years' imprisonment and substituted it for one of 18 months' imprisonment. We further indicated to the parties that we would give our reasons later which we now do.

3. In the court below, there was a total of five defendants. The applicant was the 2nd defendant. The false instrument, the subject matter of the charge against the applicant was a forged credit card.

4. The prosecution's case was that the applicant, together with the other four defendants were members of a criminal syndicate headed by a man called "Ah John" whom the police are still trying to locate. That syndicate possessed and used forged credit cards as well as genuine Hong Kong identity cards but relating to other people to purchase goods with resaleable value such as birds nests, rock sugar, luxury shoes, milk powder, diapers and some jewellery.

5. The matter came to light when police by chance stopped and searched the car of the 1st defendant DY5623 on 20 April 2001 in relation to a minor misdemeanour but found an identity card relating to another person and two credit cards later confirmed to be forgeries.

6. When the interior of the 1st defendant's car was further searched, three more identity cards (later proved to be genuine but reported lost) and two other credit cards (later confirmed to be forgeries) were found. When the glove compartment of the car was stripped, a hidden compartment was found inside secured with adhesive tape in which were found further false credit card and 22 blank credit cards purportedly from a credit card company called Chase International.

7. The applicant's fingerprint was found on the sticky side of the adhesive tape securing the hidden compartment in the 1st defendant's car.

8. The applicant was known to the 1st defendant who had delivered some of the items purchased using the false credit cards to the applicant's home address where he lived with his girlfriend.

9. When the applicant's home at the mezz floor of No.4 Hei Yuen Street was searched, a Visa credit card in the name of Chan Chi Ming was found on the window sill of the toilet. The applicant's fingerprint was later found on this card. This card was a forgery and the subject matter of the charge against the applicant.

10. A further search of the applicant's home revealed the items stored there by the 1st defendant but no charges were brought against the applicant in respect of these stored items there.

11. The applicant had his own car, EY2078. A notebook was found in the applicant's car recording the prices of items. A similar notebook also recording prices of items was found in the 1st defendant's car. The applicant's fingerprints were found on both notebooks.

Grounds of appeal

12. Three grounds of appeal has been put forward by the applicant to say that the sentence of three years' imprisonment passed on him by the judge was manifestly excessive and/or wrong in principle.

13. Firstly, that the judge wrongly sentenced on the basis that the applicant was charged with possession of 23 fake credit cards instead of just one.

14. Secondly, it is contended that the judge was wrong to have aggravated the sentence because the judge took the view that the prosecution erred in failing to bring other charges (namely handling stolen goods) against the applicant or in charging him with an offence carrying a heavier sentence than the actual offence charged, namely under section 75(1) which includes the further element "with intention to deceive" and which carries a maximum sentence of 14 years' imprisonment.

15. Thirdly that there is disparity between the sentence imposed on this applicant with the sentences passed on the other defendants in the same case by the same judge.

Ground 1

16. The judge sentenced the applicant and the 1st defendant on 25 January 2002 at the same occasion. (The other defendants were sentenced at a later time pending reports.) The judge sentenced the 1st defendant and the applicant separately. After dealing with 1st defendant, the judge then went on to deal with the applicant. When dealing with the applicant, the judge had this to say (at page 39 of the bundle) :

"Despite all this evidence, this counsel selected a section 75(2) offence to charge him in respect of the 23 cards. This is the less serious offence and in the context of the evidence is clearly wrong, for he and D1 must have had them in their possession 'with the intention that they shall use it to induce somebody to accept it as genuine.' "

It is these words of the judge which forms the basis of Ground 1. Admittedly, these words when looked at in isolation seem to indicate quite conclusively that the judge was in error in thinking that the applicant had been charged for possession of 23 false credit cards.

17. However, looking a the transcript it is also clear that two sentences before the above quoted words of the judge, she also said the following words :

"Nor was he (the applicant) charged in relation to the 22 blank credit cards, even though he was the only one with the skill to detach the glove compartment to hide them for D1 and his fingerprint was found on the adhesive tape used to attach the cards."

From these words it is apparent that the judge was very much alive to the fact that the applicant had not been charged with the other 22 blank credit cards.

18. Despite the fact that the prosecution is ready to concede that the judge was in error in sentencing the applicant on the basis that he was charged with possession of 23 false credit cards, we are of the view that the judge was not in error in that respect as urged upon us by the applicant.

19. What we believe happened was that the judge was trying to get across the fact that the prosecution had only charged the 1st defendant with a section 75(2) offence in relation to the 22 blank credit cards and at the same time had also only charged the applicant with a similar offence in relation to the one credit card that the applicant was charged with. But instead of referring to the 1st defendant and the applicant separately, the judge dealt with both of them together therefore coming out with the 23 cards all in one go.

20. Looking at the totality of what the judge said when sentencing, we are not convinced that the judge had wrongly sentenced the applicant on the basis that he was facing a charge of possession of 23 false credit cards.

Grounds 2 and 3

21. As a matter of convenience Grounds 2 and 3 can be dealt with together. The maximum sentence provided by statute for the charge faced by the applicant was in fact three years. In so sentencing the applicant, the judge was effectively imposing the maximum sentence provided for by the law and it is also clear from what the judge said that she was aware that she was passing the maximum sentence provided for by law.

22. We take the view that it is not wrong for the judge when sentencing to look at all the evidence and circumstances of the case in determining the role played by the applicant within the context of the offence charged. In this respect the judge did express her view that the prosecution has stated that the applicant stood somewhere below the 1st defendant in the hierarchy of this operation and if that was so, her own view was that on the evidence, the applicant was not much below.

23. However, what was not open to the judge to do was to take into account what she thought was en error of the prosecution in failing to charge the applicant with the offence of handling stolen goods or failing to charge the applicant with the more serious section 75(1) offence instead of the section 75(2) and then to sentence him on the basis that these other charges should have been preferred against him by the prosecution.

24. This was the error into which the judge fell and which accounts for her sentencing the applicant to the maximum sentence provided for by the law.

25. It has been said too often that the maximum sentence would normally be imposed only for the worst type of offence of its kind as charged (see R. v. Ambler [1976] Crim. LR 266, R. v. Tin Sau Kwong, CACC 621 of 1996). Here the offence for which the applicant was convicted can hardly be said to be the worst type of its kind. Indeed the prosecution readily concedes that there is no international dimension to this case, the size of the operation was said by the judge to be small, and that the operation only took place between March and April 2001.

26. In all the circumstances of this case, we are of the view that the judge erred in principle in her approach when she adopted effectively the maximum sentence of three years' imprisonment as the starting point in sentencing the applicant.

Disparity and quantum

27. We should also say that in allowing this appeal, it was for the reasons given above, namely that the judge erred in the approach adopted by her in passing the maximum sentence upon this applicant.

28. In so far as the submission on disparity is concerned, we can do no better than to reiterate the words of Roskill LJ (as he then was) in R. v. Stroud (1977) 65 Cr App Rep 150 :

"It is said that there is here such a glaring disparity that this Court ought to interfere in order to remove what is said to be a grievance on the part of the Appellant Stroud.

That argument pressed to its logical conclusion would mean, as Scarman LJ pointed out during the course of the appeal, that because one inadequate sentence is wrong, the other prisoner must also get a glaringly inadequate sentence in order to produce what is said to be a proper adjustment between the two and to avoid disparity. In the view of this Court that is quite wrong."

29. Moreover, while there are conflicting decisions in courts in Hong Kong as to the principles to be applied when it is alleged there is a disparity in sentence, there are clear authority to suggest that the local courts have taken the approach adopted by the courts was to ignore the sentence passed on a co-accused and to consider merely whether the sentence actually passed on the appellant was appropriate. (See Leung Hoi [1973] HKLR 238, Ngai Sum Tin [1978] HKLR 136, Fung Siu Keung [1981] HKLR 608, and Chun Chi Cheung (1983) HKLJ 123)

30. That is the approach that we prefer to follow in this case. This is particularly so where the other co-accused faced different charges, some pleaded guilty and the judge took differing views as to their respective involvement in the operation.

31. In so far as the appropriate starting point is concerned in respect of this applicant, given the overall circumstances of this case by which the judge ascribed to him his role in this operation and looking at that in the context of that one offence for which he was charged as well as noting the maximum sentence for that offence, we take the view that a starting point of 18 months would be appropriate.

32. In view of the fact that the applicant was convicted after trial, there is no question of any deduction from that starting point.

33. It was for the reasons given above that the appeal was allowed and the sentence of the judge below set aside and substituted for one of 18 months' imprisonment.