HKSAR v. LAM WAI MING

CACC 44/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 44 OF 2004

(ON APPEAL FROM DCCC 949/2003)

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REASONS  FOR  JUDGMENT

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1.  On 30 September 2004, we dismissed the Applicant, Lam Wai Ming’s application for leave to appeal against conviction and sentence.  We now set out our reasons for our decision.

Background

2. The Applicant was charged with one count of being in custody or control of counterfeit currency notes or coins with intent, contrary to section 100(1) of the Crimes Ordinance Cap. 200.  He was tried at the District Court before Judge Wesley Wong and was convicted on 20 January 2004.  On the same day, after invoking the provisions of the Organised and Serious Crimes Ordinance, Cap 455 the Judge sentenced him to serve 4½ years’ imprisonment for this offence. 

3. The Applicant sought leave to appeal against both his conviction and sentence.  Mr. Edwin Choy represented him; he was not his counsel at trial.

Prosecution case

4. The prosecution case was that during a police raid on 17 July 2003, a black plastic bag containing $53,000 in face value of counterfeit Hong Kong $100 banknotes was found under Applicant’s bed in his room at the Yim Yeung Tin Singing House, in Temple Street, Mongkok, where he worked.  He had led the police to find them there.  On the discovery of these counterfeit banknotes, and after caution, the Applicant took another counterfeit $100 banknote out of a drawer and told the police that a man called Ying Kit had brought them to him at the premises, and that the price for each counterfeit banknote was $25, but he had not yet paid for them.

Defence case

5. The Applicant gave evidence.  His case was that on the night before the police raid, a woman cleaner had found a bag containing banknotes, which one of Ying Kit’s followers had left behind.  She had handed the bag to the Applicant.  He did not know that the banknotes were counterfeit.  He had stored the bag under his bed, before doing so he had taken one out to look at it.  He had tried to return the bag to Ying Kit, but before he could do so the police had raided his room.  He had not made the admission the police said he had.

6. The woman cleaner (DW2) also gave evidence on the Applicant’s behalf.  She said that her working hours were from 8 p.m. to 2 a.m.  In the early morning of 17 July 2003, while she was cleaning the table near the ladies' toilet, she saw a black bag underneath it.  She took it out and looked inside it.  Inside she saw something like money.  She described its’ appearance.  She took it up to the mezzanine floor and handed it to the Applicant.  She showed the Applicant where she had found the bag.

7. The Judge rejected the evidence of both the Applicant and his witness, and found the case against the Applicant proved beyond reasonable doubt.

Grounds of appeal against conviction

8. The two grounds of appeal filed in support of the application for leave to appeal against conviction relate to alleged errors in the Judge’s Reasons for Verdict.

9. The first ground of appeal claims that the Judge fell into error when in rejecting the Applicant’s evidence he said:

“I do not believe, and I reject, his defence that those counterfeit banknotes were left behind by “Ying Kit” and his party the night before.  I consider that to be a creation of his own imagination based on what he said to DPC 20308 in reply to the caution.  Had that been true, I would have no doubt that he would tell the Police Inspector right away when he handed the Police Inspector the black bag.  Not only did he not tell the Woman Inspector there and then, he did not put forward his defence to the duty officer in Yau Ma Tei Police Station and Wan Chai Police Station: nor did he offer his explanation to the Magistrate (emphasis supplied).”

10. Mr. Choy argues that it is impermissible for a court to test a defendant’s credibility on the basis of his failure to disclose his defence before trial. 

Discussion - first ground

11. As to the first ground of appeal; this Court in HKSAR v. Del Carmen [2000] 2 HKC 431, reviewed the authorities at length and concluded that common law precedent does not permit a judge to make any comment to a jury inviting them to use the fact that a defendant relied on a defence at trial which he had not earlier disclosed to the prosecution.  This Court was of the view in Del Carmen that changes to the law made in England in the mid-1980’s could usefully be introduced into Hong Kong law.  That has not been done and whatever the position may now be in England, the common law position still applies in Hong Kong.  In Hong Kong, subject only to well known limited exceptions, such as a judge’s power to comment on the effect of defendant’s failure to give evidence, an accused’s right of silence when first accused of a crime is still regarded as sacrosanct.   

12. In Del Carmenthe judge directed the jury that, although they could not use the defendant’s failure to disclose her defence to find that she was guilty, they could use her failure to disclose that defence in considering whether or not, in their view, that failure affected the defendant’s credibility.  This was held to be a misdirection, and it was only by applying the proviso contained in s.83(1) of the Criminal Procedure Ordinance, Cap 221 to what was described as case containing “strong circumstantial evidence” that this Court dismissed the appeal. 

13. This is not the situation we are faced with in this present case.  In Del Carmen, the appellant had exercised her right of silence when first accused of the offence and reserved her defence to trial.  Here the Applicant had not exercised his right of silence.  According to the prosecution witnesses, at the time of his arrest he had made inculpatory admissions to the police about how he came to be in possession of the counterfeit banknotes found in his room.  The Applicant, although accepting that he had spoken to the police about this, claimed that the police had fabricated his inculpatory remarks and that he had said something entirely different.  The Judge had to decide whether or not he believed him.  By his use of the phrase “Had that been true…” at the start of the impugned passage from his Reasons for Verdict the Judge made it clear that he was addressing his mind solely to that issue.  He decided that he did not believe the Applicant, taking the view that had his version been true then he would have proffered it to persons in authority, such as the Woman Police Inspector who led the police party, or the Station Duty Officers at the police stations where he was processed after arrest, or the magistrate on his first remand, something which the Applicant accepted he had not done. 

Discussion - second ground

14. The impugned passage in the Judge’s Reasons for Verdictreads:

“To support his defence (the Applicant) called (DW2) to give evidence.  It is easy to give a broad description of the story, but when it comes to details, her evidence became most unconvincing.  She said that on 18 July 2003 she did not know the defendant was arrested, and she asked the defendant what happened and the defendant told her there was a lot of police, but on the 18^th the defendant was already in custody. She said the fake notes were lying flat in the bag, partly bent; but that was contrary to the pictures depicting the notes inside the bag.  I reject her evidence in total.” (emphasis supplied)

15. DW2 was asked nothing in examination in chief about when she found out that the Applicant had been arrested.  In cross-examination she was asked:

“Q.    I want to ask you did you ever find out that Mr. Lam, the defendant, was arrested by the police?

A.      I didn’t know.  Even on the 18^th when I reported duty I looked for Mr. Lam.

Q.      Did you ever find him?

A.      it was not until a week later I met Mr. Lam again.”

Q.      What happened then?

A.      I asked Mr Lam what had happened on the 17^th as I was curious to know.

Q.      And what happened then?

A.      Mr Lam told me that on that evening many police officers arrived and did a lot of things but I can’t give an account of it. Something like searching.  He asked me not to worry and I could continue to work there.”

16. Later, prosecuting counsel asked her:

“Q.    Well, you knew that Mr. Lam had been arrested didn’t you?

A.      Mr. Lam mentioned this when I went off duty on the 18^th.”

Q.      And he also told you it was about the counterfeit banknotes.

A.      He did not mention any thing about counterfeit banknotes.

Q.      Didn’t he tell you it was in relation to the banknotes in the bag?

A.      He did not say that on the evening of the 18^th he just said that a lot of police officers came for a search on the 17^th.

Q.      “The first time that you would have seen Mr. Lam would have been some time after the 21^st is that right?”

A.      “To my recollection it was not until a week later I met Mr. Lam again.”

17. At this point, the Judge intervened and the following exchange took place:

“Q:    Didn’t you say that on the 18^th you asked Mr. Lam what happened and the defendant said there were lots of police?

A:      No, no, no. No, no. The situation was that on the 18^th when I reported to duty I have to look for Mr. Lam but I couldn’t find him. I couldn’t find him.

Q:      That was not what you said earlier, is it?

A:      I wanted to ask him what happened on the 17^th when I was not on duty and I tried to look for him but I could not find him.”

18. In a further exchange between judge and counsel, the Judge appeared to agree with defence counsel’s interpretation of DW2’ evidence that she had said her meeting with the Applicant was not on 18 July 2003, but a week later.

19. From the above Mr. Choy argued that it is clear that DW2 was saying that she looked for the Applicant on 18 July 2003, but could not find him and that she did not meet him again until a week later. 

20. We agree with Mr. Choy that it appears from the transcript that the Judge, when he said in his Reasons for Verdict that DW2 had said she had spoken to the Applicant on 18 July 2003, misstated DW2’s evidence on this issue.  It would also appear that he was in error when he used the fact that it would have been impossible for DW2 to speak to the Applicant on the 18^th because he was in police custody on that day as a reason to disbelieve her.  However, this issue, which formed no part of the defence case, appears to us to have been a purely peripheral one.  Neither was it the only reason why the Judge disbelieved DW2’s evidence; her account of how the banknotes were laid inside the bag was not bourn out by the photographs of the exhibits.  Although the Judge fell into error it was not of such severity as to call for intervention by this Court.

Decision on the application for leave to appeal against conviction

21. For the reasons given we were of the view that there was no substance in either ground of appeal and we dismissed the Applicant’s application for leave to appeal against his conviction.

Appeal against sentence

22. When sentencing the Applicant, the Judge adopted a starting point of 3 years’ imprisonment.  He then said that in view of the prevalence of the type of offence the Applicant had committed he was enhancing the sentence by a further 50% under the provisions of the Organised and Serious Crimes Ordinance and sentenced the Applicant to serve a total of 4½ years of imprisonment.

Grounds of appeal against sentence

23. Before the sentencing hearing, the prosecution had served on the Applicant a notice of intention to furnish information pursuant to section 27 of the Organized and Serious Crimes Ordinance and had provided both the Court and the defence with three witness statements given by a Chief Inspector of Police.  In these statements, the Chief Inspector produced statistics showing (inter alia) the number of counterfeit Hong Kong $100 banknotes which had surfaced in Hong Kong and been seized by the police.  He also provided statistics of the number of persons prosecuted for offences connected with counterfeit Hong Kong $100 banknotes.

24. Mr. Choy did not dispute that the offence of possession of counterfeit banknotes with intent is a serious one and that the statistics show that such offences persist in spite of the police’s efforts to eradicate them.  Neither did he take issue with the Judge’s starting point of 3 years’ imprisonment.  It was, however, his contention that the statistics provided to the Judge were insufficient to support the proposition that these offences are prevalent.

Discussion

25. We do not agree; the principles governing a Judge’s use of his powers to enhance sentences under the provisions of the Organised and Serious Crime Ordinance are set out in this Court’s decision in HKSAR v. Wong Fung Ming and Anor CACC515 of 2001 (unreported).  There is no doubt that it both an extraordinary power and a draconian one, and it is a power that should only be used where there is cogent evidence both that that the offence in question remains prevalent at the date of an accused’s sentencing and that there is demonstrable need by its exercise to deter others from committing that offence. 

26. The statistics provided to the Judge showed that in 2003 a total of 15,719 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized in Hong Kong, 11,650 of that total were counterfeit $100 banknotes.  In 2002, the figures show that a total of 19,396 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized, of which 14,125 were counterfeit $100 banknotes.  The statistics also show that in 2003, 15 persons were prosecuted for offences relating to counterfeit $100 banknotes, whereas only 7 persons were prosecuted in 2002.  The 1999 figure was 3 persons and it was only in the year 2000 that the number of persons prosecuted – 14, approached the 2003 figure.  The Chief Inspector’s statistics also showed that in 2003 there was a rising trend in the number of counterfeit $100 banknotes produced on color-ink-jet printers.  The counterfeit banknotes involved in this case were produced by this method.  In January 2003, 462 counterfeit banknotes so produced were seized; by December the monthly seizure figure had risen to 1,695 counterfeit banknotes.

27. It is true, when the 2003-2002 figures are compared together, that in 2003 there was a drop in total numbers of counterfeit banknotes seized.  However, when those figures are compared with the 1999 figures of a total number of counterfeit banknotes of 6,519 and counterfeit $100 banknotes of 2,032, as well as with the figures for the number of persons prosecuted for offences relating to counterfeit $100 banknotes, and the figures showing a rising trend in the number of counterfeit $100 banknotes produced on color-ink-jet printers, the Judge’s conclusion at the time of the Applicant’s sentencing that offences relating to counterfeit banknotes were prevalent in Hong Kong was an inescapable one.  Clearly there remained a need to invoke the provisions of the Organised and Serious Crimes Ordinance and deter others from committing such offences. 

28. Mr. Choy also questioned the need for the enhancement to be as high as 50% of the starting point sentence.  We note, however, that in HKSAR v. Yip Kwok Fai CACC 306 of 2002 (unreported), a case involving possession of counterfeit coins with intent, this Court opined that for future offences against section 100(1) of the Crimes Ordinance a 50% enhancement would be justified.  

Decision on the application for leave to appeal against sentence

29. For the reasons given we were satisfied that there was no merit in the application for leave to appeal against his sentence and we dismissed it.