HKSAR v. LIU CHI KEUNG

CACC000317/1998

Criminal Appeal No. 317 of 1998

HEADNOTE

Sentencing

Held: Consecutive sentences could not be justified for multiple offences of an identical nature committed in the course of the same transaction, with no evidence pointing to separate offences, a fortiori where a single charge appears to be more appropriate.

Consideration of application of totality principle and of total concurrent and consecutive sentences for multiple offences very substantially in excess of the maximum for a single offence.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 317
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant was convicted by Beeson J in the Court of First Instance on his own plea of guilty on nine counts of possession of equipment for making a false instrument contrary to s.76(2) of the Crimes Ordinance (Cap. 200). He was sentenced to terms of imprisonment totalling five years. He now seeks leave to appeal against those sentences.

2. The facts are that on 25 April 1997, a party of Commercial Crimes Bureau officers in execution of a search warrant, raided a printing factory known as "Cathay Printing Company" located in a flat on the third floor of Block 2 of the San Po Kong Factory Estate. The applicant was found inside and arrested. A search of the premises revealed, among other things, a printing machine, a paper cutting machine, a plate exposure machine, and some 50 zinc plates and papers bearing patterns produced by these plates, which were all seized. The zinc plates had printing patterns designed to produce bank drafts of the Nanyang Commercial Bank, a bank draft of the Bank of China, bank documents of the Hongkong Bank and Hang Seng Bank, examination result certificates and a visa of the Republic of South Africa. Among the items seized were zinc plates designed and adapted to produce the following purported items:

Each of the nine foregoing items, apart from items (2) and (6), consisted of a single zinc plate.

3. The applicant admitted that the zinc plates were used to print the instruments in question at the request of one "Mr Chan" and that he knew that Mr Chan did not have authority to produce such instruments.

4. In addressing the sentences she was going to impose, the judge noted that the applicant had a clear record, that he was then 41 years of age, had secondary education and had been operating a printing factory since about 1987. She also noted the following matters. He is married with one daughter and one son who are at school. He was a voluntary worker with the Mountaineer Association in Hong Kong, and assisted with voluntary activities in relation to that Association - mainly youth work and fund raising. He also worked in a scheme which assists girls to receive schooling in China.

5. The judge rightly recognised that the offences were serious offences. She correctly noted that in relation to sentencing for offences under s.76(2) of the Crimes Ordinance, there was no direct assistance to be obtained from previous cases. She accepted that the major mitigation in the case was the applicant's plea of guilty notwithstanding that it came on the eve of the trial. She then continued in the following way:

6. The first perfected ground of appeal was as follows:

7. Section 76(2) of the Crimes Ordinance (Cap. 200) provides that:

8. The nine charges were framed in identical terms save for the different specification of each of the false instruments in question. It suffices, therefore, to set out only the particulars of the first count which were as follows:

As will be seen, the complaint in the first perfected ground of appeal goes much further than is immediately apparent. Each of the offences charged was essentially the same, i.e. that the applicant had under his control the same machines, instruments and materials at the same time and place, the only difference being the zinc plates. Plainly, one charge could easily have been laid. It would have been a simple matter to refer to the product or purpose of all the zinc plates together. It was not suggested that there was any difficulty in that regard. On the contrary, that would seem to be the natural thing to have done in the particular circumstances, i.e. to have included all the 15 zinc plates within a single charge in the same way that several items which happen to be stolen at the same time are made the subject of a single charge. The consequence of that would, of course, have been that the court would only have been able to sentence the applicant to the maximum provided for a single offence or charge. It is necessary to make clear in that respect that there appeared to be no evidence whatsoever to separate any of the offences so separately charged from each other, particularly in point of the time at which they may have been committed, save as to the one feature i.e. that the zinc plates specified in each of the charges were "specially designed or adapted for the making of" a separate and distinct "false instrument". Even if separate charges being laid viewed solely upon that basis could be justified, whether sentencing upon that basis could be justified is open to question. But what we are concerned with here, i.e. separate consecutive sentences in respect of the three groups of charges is clearly open to question, since all the offences arose out of the same transaction, moreover to a degree that is not usually encountered.

9. Mr Cheung for his part submits that the judge was entitled and indeed justified in splitting the offences into three categories. There were, he says, in fact three groups of offences judged by their seriousness; false instruments comprising examination certificates, comprising bank documents and comprising visas clearly fell into three groups of varying degrees of seriousness. The judge therefore was entitled to divide them into three groups and award different sentences in respect of each and moreover make them consecutive. The latter contention, that they could properly be made consecutive, cannot be accepted. In the first place, the judge did not divide the charges in the way suggested. The first group, i.e. charges 1, 2, 3 and 4 related to three examination certificates and one visa. The latter two groups consisted only of bank documents. But that is in the nature of an incidental objection. The real flaw in the submission is that all the charges being part of the same transaction, there is no proper basis for consecutive sentences. The seriousness of such offences could properly be met by placing all the offences in the group of the most serious offences and imposing the highest appropriate penalty permissible upon a concurrent basis.

10. We are satisfied, therefore, that the consecutive sentences imposed cannot be sustained. The maximum penalty under s.76(2) is three years. The serious view the judge took of the offences, as already observed, was clearly right. But we do not think that in the circumstances it could justify here a starting point of above two years and nine months. And from that starting point, there would have to be the discount of one-third that the judge properly allowed. We would accordingly allow the appeal, set aside the sentences and instead impose concurrent sentences of one year and ten months in respect of each of the nine offences. If this is thought to be too low, for a single offence of the present sort, then the answer may be for the legislature to very substantially increase the maximum penalty prescribed to cater for the entire range of foreseeable circumstances. Also not without relevance to that consideration must be the prosecution's election to accept pleas to the lesser offences under s.76(2) and not persevering with the original charges under s.76(1), which it appears on the facts might well have been established and would have attracted a maximum of 14 years imprisonment.

11. There remains the invitation Mr Cheung made to the Court to clarify two of the authorities upon which Mr Ip relied in his submissions on the applicant's behalf. The latter, Mr Cheung said, could confuse the courts at first instance if not clarified.

12. The first is the following passage from pp. 58 and 59 of the 2nd Edition of Thomas' Principles of Sentencing:

In reliance upon the words emphasised, Mr Ip had submitted that the totality principle meant that the sentences in totality should not be substantially in excess of the maximum provided for that category of offence. In his submission, given the maximum sentence of three years, something in the order of three years and three months might be acceptable but certainly not five years which approached twice the maximum.

13. Mr Cheung's response is that the part of the passage from Thomas emphasised must be wrong if it means that where there is a large number of offences that otherwise warrants a sentence substantially in excess of that maximum, it yet cannot be imposed because of the totality principle.

It has to be said that Mr Ip's submission cannot be accepted nor can the words emphasised in the foregoing passage from Thomas, if their effect is to preclude a sentence or the aggregate of consecutive sentences, substantially in excess of the statutory maximum for an individual offence. That said, it can be seen that the meaning and effect of the passage are not entirely clear. What is clear is that in appropriate cases, the aggregate sentence for consecutive offences of the same type may very substantially exceed the statutory maximum for an individual offence; this has not infrequently been done or approved by this Court.

14. The other authority about which Mr Cheung was concerned is the following translation obtained by this Court of the related passage from the judgment of this Court differently constituted in HKSAR v Wong Lou Tak (1998)2 HKC 607, 608 given in Chinese:

This, Mr Ip submitted, clearly set out the procedure and the steps to be adopted in applying the totality principle; the judge had plainly not followed it; therefore the judge erred in principle so that the sentence so arrived at was vitiated. We think the procedure recommended, which accords with previous decisions of this Court, would have been appropriate to the particular circumstances before the judge. But these, and those given earlier, are guidelines; important though they be, failure to observe them strictly would not necessarily be fatal to the sentences concerned if they are not manifestly inadequate or excessive. Moreover, the passage is concerned with circumstances of the sort before the court there, i.e. the 20 counts of deception. In respect of all of those, the judge at first instance considered a sentence of six months for each was appropriate. For the pleas of guilty, this was reduced by two months to four months. Then taking further account of the totality principle, the judge further reduced the sentence on each count to two months to run consecutively producing a total of 40 months.

15. The Court of Appeal there was thus concerned in the foregoing passage with the commission of "a series of similar offences, in different places and under different circumstances". We can see no reason to fear, as apparently, Mr Cheung does, that the recommended procedure will be thought to apply generally to the operation of the totality principle.

16. In the result, we grant leave to appeal, treat the hearing of the application as that of the appeal, allow the appeal, set aside the sentences imposed and substitute concurrent sentences of one year and ten months in respect of each of the nine offences.

Representation: