HKSAR v. CHOW TAK FAI

IN THE COURT OF APPEAL

1997, No.225
(Criminal)

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. The Applicant was sentenced on 8th April 1997 by His Honour Judge Gill in the District Court to a total of four years and three months imprisonment for seven offences. The first charge related to the possession on 21st November 1991 of two counterfeit bank credit cards contrary to s.76(2) of the Crimes Ordinance, Cap.200, for which he was sentenced to three years' imprisonment. The second charge was the possession on 24th July 1996 of an unlawfully obtained travel document contrary to s.42(2)c)(i) of the Immigration Ordinance, Cap.115, on which the sentence was 18 months' imprisonment. Charge 3 was attempting to escape on 24th July 1996 from lawful custody contrary to Common Law, on which the sentence was three months' imprisonment. Charges 4 to 7 were sample offences taken between March and July 1996 of making in each case a false representation to an Immigration Officer contrary to s.42(1)(a) of the Immigration Ordinance.

2. The learned Judge made what was perhaps an unnecessarily complicated order as to the way in which those sentences should be served by saying that the 18 months on charge 2 should begin 2 years after the sentence of three years on charge 1 began, and that the three months' sentence on charge 3 was to begin after the sentences for charges 4-7 had been completed. The sentences of 18 months on charges 4-7 were ordered to run concurrently with each other and to begin 6 months after the sentence on charge 2 had begun. In the result this achieves a total of four years and three months that had to be served, and it is against this sentence that leave to appeal is now sought by the Applicant.

3. Briefly, the Applicant was first arrested on 21st November 1991 in possession of two blank counterfeit Hongkong Bank Gold Mastercards which were high quality forgeries. Following some days in police custody, the Applicant was bailed until his next court appearance on 12th December 1991. He failed to appear. About 41/2 years later, on 24th July 1996, the Applicant was located by police. He produced a China two-way permit which was in a false name. The Applicant then attempted to escape but was caught. He later admitted in interview how he had purchased his permit in China and how he had used it on a number of occasions to enter Hong Kong. The charges in this respect were samples because the permit shows that between March and July 1996 it had been used no less than 23 times.

4. The Applicant pleaded guilty at his trial to charges 2 to 7 inclusive and it was clear that if he had originally been charged with the possession of the counterfeit Mastercards, he would also have pleaded guilty to this. However, the prosecution proceeded against the Applicant on a conspiracy charge relating to the possession of counterfeiting items. It became apparent to the trial Judge that the Applicant was merely a courier for those who were responsible for the items used to make counterfeit credit cards and accordingly the Applicant was only found guilty of simple possession. The learned Judge accepted that the Applicant would have pleaded guilty to the possession of these two gold Mastercards if it had not been for the conspiracy allegation. He observed that at the material time when the offence was committed, the maximum sentence was seven years' imprisonment and he went on to say:

"any credit for that (intended plea of guilty) has been nullified by his choosing to jump bail before trial some five years ago."

5. Mr. Eric Kwok has principally submitted that the sentence of three years on the first charge does not reflect a proper discount bearing in mind the plea of guilty that would have been tendered and because the learned Judge has erred in saying that the Applicant's plea is "nullified" by reason of the Applicant having absconded. Furthermore he argues that three years should have been regarded as the maximum sentence having regard to amendments made to the Crimes Ordinance which were in force by the time of trial. Mr. Kwok also submits that 18 months' imprisonment was not a correct starting point for the Immigration offences in Charges 2, and 4-7.

6. Dealing with the first charge, in 1991 when the offence was committed, s.76(2) of the Crimes Ordinance carried a seven year maximum. By the time the Applicant was sentenced the law had changed and, by virtue of s.75(2) of the Crimes Ordinance, it carried a three year maximum which the Respondent accepts is to be regarded as the maximum that the judge could impose on the facts of this case. Article 12 of the Hong Kong Bill of Rights provides that there shall not be retrospective penalties for criminal offences and in particular, so far as it is relevant to this case:

"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."

7. Mr. Blanchflower has very properly conceded that the learned Judge was in error by taking seven years as the maximum for this offence. We have in mind, as the trial Judge undoubtedly also did, that there was little mitigation beyond the intention to plead guilty had it not been for conspiracy charge. The Applicant had previous convictions for dishonesty and had become a courier for a sophisticated large-scale operation involving counterfeit credit cards. The Applicant knew full well what he was doing, but we bear in mind also that there were only two credit cards. We shall take the appropriate starting point as having been two years' imprisonment. Giving some reduction for the plea that, but for the conspiracy would have been tendered and despite how the Applicant absconded on bail, we consider that 18 months' imprisonment should have been imposed for this offence.

8. As far as the offences contrary to the Immigration Ordinance are concerned, we do not feel that the approach taken by the trial Judge can be criticized. We consider that sentences of 18 months were correct but we consider that they should all be served concurrently to each other. They are quite separate from the first charge and should be consecutive to the sentence on that.

9. We do not intend to disturb the further consecutive sentence of three months on the third charge.

10. As a result, therefore, we shall grant leave to appeal and, treating this hearing as the appeal, we shall reduce the sentence on the first charge to one of 18 months' imprisonment. The sentences on charges 2, 4, 5, 6 and 7 remain the same but we shall order that they all run concurrently to each other and consecutive to the sentence on charge 1. The sentence remains the same on charge 3 with the effect that the total sentence to be served is one of three years and three months' imprisonment.