HKSAR v. YIP KWOK FAI

CACC 306/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 306 OF 2002

(ON APPEAL FROM DCCC 268 OF 2002)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 22 October 2002, I granted leave to appeal against a sentence of three years and four months' imprisonment imposed by Deputy Judge A. Yuen in the District Court following the Appellant's pleas of guilty to two charges of having custody or control of counterfeits of protected coins, contrary to section 100(1) of the Crimes Ordinance, Cap. 200.

2. Both charges related to 2,650 counterfeit $10 coins. A second defendant (D2) was also charged in relation to the coins but he was in due course acquitted.

The facts

3. The facts were simple. The Appellant and D2 were seen entering an industrial unit in Tsuen Wan. When they left, the Appellant was carrying a cardboard box. They then proceeded to Chai Wan by taxi. The police later stopped them in the street and the 2,650 counterfeit coins, the subject matter of Charge 1, were found in their possession (each carrying half of the coins).

4. Using a set of keys found in a bag also being carried by the Appellant, the police subsequently gained entry to the unit in Tsuen Wan where the 2,650 counterfeit coins in Charge 2 were found. The Appellant admitted possession of all the counterfeit coins seized.

Judge's sentencing approach

5. In passing sentence, the judge adopted a starting point on each charge of three years' imprisonment before reducing this to twenty months on each charge, having regard to the pleas of guilty, the Appellant's clear record and other matters of a general nature in mitigation.

6. However, the matter did not end there because the prosecution had applied under section 27 of the Organised and Serious Crimes Ordinance, Cap. 455, for an enhancement of sentence.

7. Insofar as section 27 is relevant to these proceedings, this provides that if a person has been convicted of a specified offence in the District Court, the prosecution may furnish information to the court regarding the prevalence of that specified offence. If, with regard to this, the sentencing judge thinks fit, a sentence may be passed which is more severe than it would have been in the absence of such a matter. Information was duly supplied by Chief Inspector Yu in a statement which demonstrated that police seizures of counterfeit $10 coins had risen from 115,292 coins in the year 2000 to 460,835 coins last year, and that for the first five months of this year, the number of such coins seized had already reached 243,349.

8. After this information had been provided to the judge, he said:

".... I am satisfied that the offence in question has become prevalent in recent years and therefore I will allow the application.

The prosecution agree that this is a first time application for this offence and therefore the court should consider enhancement in the region of 25% instead of the usual 50%." (Appeal bundle p. 10)

9. It is a little difficult to understand what the judge meant by enhancement to 25% "instead of the usual 50%". We think that he must have had in mind what was said in HKSAR v Cheng King-lung CACC 67/2002 (para. 31):

"31. These were sophisticated offences, particularly those revealed by Charges 7, 8 and 9, targeting different banks, a systematic course of conduct by which information about account holders and balances in accounts were obtained or to be obtained; forgeries performed, using identity card details and account details. In HKSAR v LEE Sai Wing [1998] 4 HKC 280, it was suggested that where the criminal act is an organized crime, a 50% enhancement would be justified to punish the organization and to deter those working with such an organization. Where there was evidence showing that an offence had the tendency of increasing rapidly to the extent of becoming prevalent a deterrent sentence was required, but that where the offence was becoming progressively prevalent, a 50% enhancement was probably not justified without some forewarning by the courts. 'The extent of enhancement for these kinds of offences would be decided by their gravity, prevalence, and effect upon the community.' See also HKSAR v MA Suet Chun & Others CACC 1 of 2001, unreported."

10. This passage does not, of course, say that 50% is the "usual" percentage by which a sentence for a prevalent offence should necessarily be enhanced. We doubt that such a broad statement has ever been made in the Court of Appeal. Ma Suet-chun's case, cited in the passage taken from Cheng King-lung (above), was concerned with a commonly encountered, and increasingly prevalent, street deception where the court considered a 50% enhancement was necessary as a means of deterring such crimes. However, the court in that case held that as there was no precedent to indicate that such a percentage increase was justified it might lead to a sense of unfairness if this was immediately imposed. For this reason, the court enhanced the sentence by only 25%.

11. In the present case, the sentencing judge enhanced each of the sentences of twenty months by 25%, bringing each sentence to twenty-five months. He then made an order which had the effect that ten months of the sentences should run concurrently, with the remaining fifteen months on Charge 2 to be served consecutively.

The appeal

12. The crucial question we have anxiously had to ask ourselves is whether, if the whole quantity of coins in both charges had been found on the Appellant at the same time and place, he would have received such a long sentence as the one he is now serving. This was not a true case of an offender committing two separate offences, such as would have been the case if he had been found in control or having the custody of the coins in the second charge whilst on bail for a similar offence. This was a case where the Appellant had simply taken some of the coins from his store, leaving the remainder behind.

13. In our view, the judge, having first decided what the appropriate sentence on each charge should be, had to be particularly careful to keep a global view of sentence in mind, having regard to the total quantity of coins involved, in the same way as he would undoubtedly have been if this had been a drugs' case where some of the drugs had been found on the trafficker and others had been found in his store at home. In a case such as this where there are two closely related offences, the sentencer, following the approach set out in HKSAR v Tam Wai-pio [1998] 4 HKC 291 at 298, after deciding the appropriate starting point for each offence, must then take an overall view of what the end result in terms of sentence should be. If wholly concurrent sentences are inappropriate, an upward adjustment is, of course, achieved by means of consecutive sentencing to achieve the proper sentence in totality.

14. Although the judge does appear to have kept these considerations in mind in the present case, we have some concern about other aspects of the judge's approach to sentence which causes us to look at sentence afresh.

15. We consider that in normal circumstances a starting point on each individual charge of two and a half years' imprisonment would have met the justice of this case. Furthermore, we consider that a global starting point of three years' imprisonment for the total number of coins reflected in these charges would have been appropriate. In order to achieve this notional sentence, before considering discounts for the pleas of guilty or the prosecution's application for enhancement, it would be necessary to order six months of the sentence on the second charge to be served consecutively.

16. We note that the judge in the court below took three-year starting points on each charge and then reduced these to twenty months to take into account the mitigation. This represented a discount of just under 45%. There was no justification for a reduction of this magnitude. The Appellant had a clear record but he had provided no evidence of positive good character which might have justified a greater discount than one third such as, for example, having carried out unpaid work in the community. As it is, the Appellant has been treated as if he was in a category of offender where valuable information to the authorities had been provided by him which we should say immediately was not the case. He was entitled to a one-third discount and no more. Coincidentally, however, by taking starting points which were too high and by giving discounts which were too long, the sentencing judge produced sentences, before enhancement, which were in themselves not open to criticism.

17. Furthermore, in the light of HKSAR v Cheng King-lung (above), an enhancement by 25% was properly imposed. We should add that in respect of offences of this kind, we consider that in future a 50% enhancement would be justified.

18. A 25% enhancement of sentence represented on the facts of this appeal an increase of five months' imprisonment, bringing the total to twenty-five months on each charge. With totality in mind, for the whole quantity of coins in both charges, a sentence of thirty months' imprisonment was warranted. The justification for this, in simple terms, is that having originally taken a notional thirty-six months as the appropriate overall starting point for these offences before discount, if this was reduced for the pleas by a third to twenty-four months and then enhanced by 25%, this would leave thirty months to be served. Bearing in mind that there were two charges rather than one, we have been careful to impose appropriate sentences on each before finally making the upward adjustment, by means of a partially consecutive sentence on Charge 2, to arrive at the proper global sentence.

19. Respectfully, it is our opinion that the judge may have lost sight of the global picture presented by the facts of this case when he passed a sentence which had the effect of imposing an additional fifteen months' imprisonment for the 2,650 counterfeit coins in Charge 2. This produced a sentence which we consider was manifestly excessive.

Conclusion

20. Accordingly, we shall allow the appeal and reduce the overall sentence which the Appellant is serving by ten months. On the first and second charges, the sentences will remain at twenty-five months' imprisonment. However, we shall order that the sentence on the second charge will be served consecutively to the extent of five months only, making thirty months' imprisonment in total.