THE QUEEN v. LAM KWOK KEUNG

IN THE COURT OF APPEAL

1992 No. 530
(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 for leave to appeal against sentence following conviction on a charge under section 76A of the Crimes Ordinance, Cap. 200, the offence having been committed on the 17th October 1991. The maximum sentence for an offence committed contrary to that section was 14 years’ imprisonment.

2. The applicant was found in possession of 18 forged credit cards, 9 pieces of white plastic bearing credit card data, 11 telephone cards, a point of sale credit card terminal and 2 credit card rollers. He pleaded guilty to the offence and taking into account the various matters in mitigation District Judge Chua sentenced him to a term of imprisonment of 4 years. There were two other charges against the applicant of obtaining property by means of forged instruments, namely credit cards. These charges alleged that on the 11th and 14th October 1992 the applicant had fraudulently obtained goods to a total value of $444,000. It is not clear if a plea was entered on those counts but in any event the Crown offered no evidence on them and they were ordered to remain on the court file.

3. It was not brought to the Judge’s attention - and this is by no means the first time this has happened - that by Ordinance No. 49 of 1992 section 76A was repealed and replaced by sections 75 and 76. Section 75 relates to the possession of false instruments (which by definition includes forged credit cards) and section 76 to equipment for making false instruments, such as credit card rollers. Section 75(1) relates to the possession of false instruments with the intention to use them to induce another person to believe they are genuine and carries a maximum sentence of 14 years. Subsection 75(2) is for simply possessing false instruments without such intention and provides a maximum sentence of 3 years.

4. Similarly for an offence under section 76(1) to be proved there must be a finding that the equipment was intended to be used to make a false instrument - such as a credit card payment slip. It carries a maximum sentence of 14 years. Subsection (2) again relates to simple possession of the equipment and the maximum sentence is 3 years’ imprisonment.

5. On the agreed facts here the applicant could have been charged with an offence under both sections 75 and 76 but under subsections (1) of each of them only if the Crown could prove, or the applicant admitted, an intention to use the cards or the instruments for an unlawful purpose. As to whether the applicant here had so admitted is not clear. On the one hand there was a summary of facts which presumably formed the basis upon which sentence was passed in which the applicant is said to have admitted that he had tested the white cards on the POS machine and on the 11th and 14th October 1991 had obtained goods worth $445,000. That admission while it would be strong evidence of an intention to use the cards and other equipment to defraud clearly relates to the charges on which the Crown elected not to proceed and, while the applicant was not acquitted of them, he was not convicted. Presumably because of that Mr. Madigan, for the Crown, conceded here that the maximum sentence was one of 3 years’ imprisonment, under either section 75(2) or 76(2) of the Crimes Ordinance. In the light of the agreed facts that seems to be a generous concession but was presumably on the basis that the Crown had not proceeded with the charges of obtaining property by means of the false credit cards and the Crown could not show that the applicant intended to use the false cards and other equipment in future.

6. This same problem came before the Court in R. v.  Lai Kai Ming, Crim. App. No. 296/92, where Litton J.A. delivered the judgment of the Court and came to the conclusion that where legislation is changed in this manner after the date of the offence but before the date of sentence, the defendant is entitled to be sentenced on the basis of the maximum penalty in force at the time of sentence, not at the time the offence is committed. This is by virtue of Article 12(1) of the Bill of Rights. We therefore must consider this matter on the basis that the appellant should have been sentenced on the basis of a maximum sentence of three years’ imprisonment.

7. It has been argued before us by Mr. Haldane, who appears for the applicant, that in another case of possession of forged credit cards the sentence was reduced to enable the immediate release of a defendant due to this amendment in the legislation but clearly there were factors in mitigation which are certainly not present here. In this case there were admitted facts by which it was clear that the applicant had used these credit cards even if no future such use was intended and that on two occasions substantial sums had been put through the machines although Mr. Haldane informs us and we accept that no loss to the credit card company was in fact incurred. Nevertheless we consider that here the circumstances called for a sentence towards the upper level of the maximum of 3 years. It was not in dispute that the appellant was in possession of not only the credit cards but, as has been pointed out to us by Mr. Madigan who appears for the Crown, of the point of sale machine and 2 credit card rollers.

8. Mr. Haldane has also suggested that the problem involving the use of forged credit cards is not as serious as it was previously when substantial sentences of imprisonment have been imposed. This is not in accordance with what we have been told on another appeal just recently and Mr. Madigan tells us that substantial frauds are still continuing.

9. We consider that the circumstances here call for a sentence of two-and-a-half years. The applicant is entitled to a discount from that due to his plea of guilty, although it was in the face of overwhelming evidence.

10. For those reasons the application is granted, we treat this as a hearing of the appeal and the sentence of four years is reduced to one of two years.

11. Before leaving this case we would express the surprise that despite the fact that the first time this particular problem came before this Court was in January 1993, no attempt seems to have been made to correct what is clearly an anomaly in the law. We accept that credit card forgery is a serious problem and the reputation of Hong Kong is very much at issue in these matters. We consider that the maximum sentence for an offence of this sort of three years is plainly inadequate. We do not consider that on the agreed facts the sentence passed was in any way excessive. It is only because of the amendment to the legislation that we are required to take the course that we have. We only hope this situation does not continue.