R. v. CHAN KEIN WING and Another

IN THE COURT OF APPEAL

1993, No. 33
(Criminal)

HEADNOTE

Article 12(1) Bill of Rights - Appellants charged and Whether appellant entitled to benefit by the lesser penalty under the new section 100(2) of the Crimes Ordinance enacted on 26 June 1992 - the approach to construction of Article 12(1) Bill of Rights in The Queen v. Wan Siu-kei (Cr. App. No. 486/92) and The Queen v. Chan Chi-hung (Cr. App. No. 4/93) followed - Appeal allowed in the case of the Second Appellant.

IN THE COURT OF APPEAL

1993, No. 33
(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. We have two applications for leave to appeal against sentence before us, one of them (that of the first applicant Chan Kein-wing) being out of time. There is only one point of law in issue, namely, whether these applicants are entitled to benefit by Article 12(1) of the Hong Kong Bill of Rights, provision having been made by law for the imposition of a lighter penalty for their crime since the time when the crime was committed. This is a matter familiar to this court, judgments having been given on 1 September 1993 in similar circumstances, in The Queen v. Wan Siu-kei (Cr. App. No. 486/92) and The Queen v. Chan Chi-hung (Cr. App. No. 4/93) which reviewed a number of previous cases on the application of Article 12(1) of the Bill of Rights.

The charge

2. The applicants were jointly charged with possession of forged banknotes, contrary to section 76(1) of the Crimes Ordinance, Cap. 200 in the following terms:

Particulars of Offences

Chan Kein-wing and Au Chi-kwong, on 9 September 1991, in Hong Kong without lawful authority or excuse, had in their possession 45 forged banknotes, namely, documents purporting to be banknotes of a denomination of $100 United States of America currency, issued by or on behalf of the Government of the United States of America knowing the same to be forged.

3. The maximum term of imprisonment for this crime, under Part IX of the old Ordinance, was 14 years.

4. After a trial by jury before Leonard J. in January 1993 the applicants were convicted, in the case of the first applicant unanimously and in the case of the second applicant by a majority of five to two. The first applicant was sentenced to a term of imprisonment for five years and the second applicant was imprisoned for four years.

The change in the law

5. The judge, in sentencing the applicants on 18 January 1993, seemed unaware of the fact that since the commission of the offence, section 76(1) of the Crimes Ordinance had been repealed by the Crimes (Amendment) Ordinance No. 49 of 1992 which came into effect on 26 June 1992. For the previous crime of "possession of forged banknotes" in s76(1) of the repealed Part IX of the old Ordinance, there are now two new sections which read :

"100. Offences involving the custody or control of counterfeit notes and coins

(1) A person who has in his custody or under his control any thing which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, intending either to pass or tender it as genuine or to deliver it to another with the intention that he or another shall pass or tender it as genuine, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

(2) A person who has in his custody or under his control, without lawful authority or excuse, any thing which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, commits an offence and is liable on conviction on indictment to imprisonment for 3 years.

(3) ......"

6. It will be noted that for the crime of "simple" possession of counterfeit notes and coins, the maximum imprisonment is now three years, as provided for under s100(2). Where possession is accompanied by an intention to pass or tender the counterfeit notes as genuine or to deliver it to another with the intention that he or another should pass or tender it as genuine, the maximum punishment is imprisonment for 14 years. The question for us in this court therefore is simply this: Having regard to the change in the law, and the fact that for "simple possession" of forged banknotes, the maximum term of imprisonment has been reduced to three years, does Article 12(1) of the Hong Kong Bill of Rights, properly construed, require the sentence of either of the applicants to be reduced as a result?

7. The question of the proper approach to this issue has been determined by this court in Wan Siu-kei (Cr. App. 486/92) and Chan Chi-hung (Cr. App. 4/93). There, we determined, by a majority, that Article 12(1) should be applied broadly and not restrictively; in considering the application of Article 12(1), the court is not confined to the averments in the charge. The court must look at the circumstances of the crime, properly taken into account, in deciding whether the case would fall within s100(1), where the maximum imprisonment is 14 years, or s100(2) where the maximum imprisonment is 3 years.

Facts of the case

8. The principal witness for the Crown, whose testimony must have been accepted by the jury, was one Stephen Tse. Tse gave evidence to the effect that he first met the first applicant in May 1991 in the USA and there negotiated with him concerning the purchase of counterfeit US banknotes. In July 1991 there was talk of buying a quarter of a million dollar's worth on face value of US dollar counterfeit notes. They met again on 3 September 1991 and discussed about travelling to Hong Kong, following which Tse arrived in Hong Kong on 5 September 1991 and liaised with the police. They arranged for him to stay at the Regal Meridien Hotel. Through a middle-man (an undercover agent) Tse arranged to meet the first applicant at a club, the first applicant having also come to Hong Kong in the meanwhile. After further discussions, there was a final meeting on 9 September 1991, the day as charged, when arrangements were made for the delivery to Tse of the counterfeit banknotes.

9. So far, the second applicant does not come into the picture at all. The evidence was to the effect that, on 9 September 1991, the first and second applicants were seen talking on a bench in a park near the Regal Meridien Hotel. The second applicant was seen to leave the bench, meet an unidentified person and receive an object like a white envelope. The second applicant went back to the bench and after a while transferred that white envelope to the first applicant who then went back into the hotel. That was, in effect, the entirety of the evidence as against the second applicant who, on being detained and cautioned, denied that he knew the first applicant and declined to answer any questions regarding the white envelope handed to the first applicant.

10. As regards the first applicant, the evidence was that he met Tse in the lobby of the Regal Meridien Hotel where he told Tse that he was able to get only $4,500 in counterfeit bills and they then went to Room 1359. There the first applicant took out a white envelope (exhibit P1) in which there was a second envelope (exhibit P2); inside that were the forged banknotes (exhibit P3). Shortly after that the first applicant was arrested and the exhibits seized.

Conclusion

11. In sentencing the first applicant, the judge said this :

" ...... I have heard the evidence during the trial and the offence must be viewed against the background of the negotiations which took place between you and Stephen Tse. Taking into account the background to the offence and also the matters urged in mitigation on your behalf, particularly your previous clear record, I sentence you to five years' imprisonment."

12. It is quite clear that, in relation to the first applicant, he could have been charged and convicted under s1000(1) of the amended Ordinance. He plainly had the intent to pass the counterfeit notes as genuine and intended to deliver the notes to Tse with the intention that either Tse or another person should pass them as genuine. He was liable to be sentenced to a maximum term of imprisonment of 14 years. He can derive no benefit from Article 12(1) of the Bill of Rights. His application must therefore be dismissed.

13. As regards the second applicant, the matter stands very differently. It must be assumed that in convicting him of the offence of possession of forged banknotes, the jury was satisfied that the white envelope which he was seen to pass to the first applicant was exhibit P1 which contained the notes in question. However, the circumstances under which he passed the envelope to the first applicant do not necessarily establish the specific intent under s100(1) of the amended Ordinance. He could have been a mere conduit pipe. The circumstances were highly suspicious, but, in our judgment, were not sufficiently cogent to establish the specific intent. In sentencing him, the trial judge referred to the "minor part" he took in the affair and said that the possession of the forged banknotes was nevertheless a serious matter. In his case, he could only have been safely proceeded against under s100(2) for which the maximum term of imprisonment is three years. He is, in our judgment, entitled to the benefit of the "lighter penalty" effected by the new provision of law, as provided for in Article 12(1) of the Bill of Rights.

14. Accordingly, the sentence of four years' imprisonment must, in the second applicant's case, be set aside, and his application for leave must be allowed for this purpose. Treating the hearing of the application as the hearing of the appeal, we would substitute a sentence of two years. We so order.