R. v. SZE YUNG SANG

1992, No. 486
(Criminal)

H E A D N O T E

Sentence - Article 12(1) of Bill of Rights - defendant entitled to benefit of lowering of maximum penalty between date of offence and date of sentence.

IN THE COURT OF APPEAL

1992, No. 486
(Criminal)

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J U D G M E N T

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Penlington J.A.:

1. This is an application by Sze Yung Sang for leave to appeal against sentences passed on the 5th November 1992 by Leong J. following conviction on the applicant's own plea on the first day of trial to two counts of possession of forged banknotes. One count related to 368 forged US$100 banknotes, the other two such US$100 notes.

2. There was a further count of conspiracy to utter forged banknotes together with two others one of whom, Wan Siu Kei, was subsequently convicted after trial, also of being in possession of forged US$100 banknotes. That conspiracy charge was not proceeded with, and remained on the file to only be proceeded with by leave.

3. The charges were brought under s. 76(1) of the Crimes Ordinance, Cap. 200, as worded at the time of the commission of the offences, the 18th July 1991. However, unknown to the court because nothing was said by counsel for the Crown or the defence, between the time of the commission of the offences and the date of trial there was a substantial amendment to the Crimes Ordinance whereby s. 76 was repealed and was substantially re-enacted as s. 100. Under the former s. 76(1), it was an offence simply to be knowingly in possession of forged banknotes and it carried a maximum penalty of 14 years' imprisonment. Under the new s. 100 the offences have been divided whereby under s. 100(1) the penalty remains at 14 years but it is necessary for the Crown to show that the defendant intended to pass or tender the banknotes as genuine or to deliver them to another person with the intention that he should so pass or tender the banknotes. Section 100(2) makes it an offence for a person to knowingly be in possession of forged banknotes, and carries a maximum penalty of three years' imprisonment. The reasons for that penalty being so low we find difficult to understand. The section in force at the time of trial which were relevant to the offences committed by the applicant was s. 100(2), in light of the Crown's decision not to proceed with the count of conspiracy to utter the banknotes.

4. A similar set of circumstances arose in another case which recently came before another division of this Court, R. v. Lai Kai Ming 12th January 1993 Crim. App. No. 296/92. Litton J.A. referred to Article 12(1) of the Bill of Rights the effect of which is that, where there has been an amendment that reduces the maximum sentence for an offence passed between the date of the commission of the offence and the date of sentence, the offender shall have the benefit of the amendment and be sentenced in light of the reduced penalty. It was held that even when the amendment is to re-define the offence and not simply to reduce the maximum penalty, an accused person is entitled to be sentenced on the basis of the new maximum.

5. There can be no doubt, and Miss Papadopoulos for the Crown does not seek to argue to the contrary, that on the authority of R. v. Lai Kai Ming the applicant should hin force at the ave been sentenced on the basis of the maximum penalty time of sentence, three years' imprisonment. We are not quite sure how this matter slipped through the net but slip through it did. The sentence was in excess of the maximum allowed and the application must succeed.

6. Mr. McGuinniety, who appears here for the applicant, sought to argue that the trial judge passed a sentence which was slightly more than one third of the maximum which he thought was in force at the time and that we should therefore do the same. We do not think that is correct. The maximum sentence was thought to be 14 years. It is in fact three years. If we took one third of that and then allowed for the mitigation raised it would result in a sentence which, for what is a serious crime, would be derisory. We consider that we should simply consider the maximum sentence and then look at the mitigation factors which were present.

7. The applicant pleaded guilty at a very early stage; indeed at the pre-trial review he indicated that he would plead guilty to the offences provided the Crown did not go ahead with the conspiracy count. Assistance in the form of a statement was given to the Crown although the applicant did not in fact give evidence against his co-accused. He has a clear record. He has a medical problem with his eyes which apparently has caused him to have to give up driving a taxi which has been his livelihood for many years.

8. Taking those factors into account the application is allowed and the sentence for count 2 - the 368 forged US$100 banknotes - is reduced to one of 18 months' imprisonment and in respect of count 3 - the two forged US$100 banknotes - 12 months' imprisonment, the sentences to be concurrent.