R. v. CHAN CHI HUNG

IN THE COURT OF APPEAL

1993, No. 4
(Criminal)

Headnote

Sentencing - Possession of forged credit-cards charged under s.76(2) in Part IX of Crimes Ordinance prior to Crimes (Amendment) Ordinance which came into effect on 26 June 1992 replacing the old Part IX - The question before the court was whether the appellant was, under Article 12(1) of the Bill of Rights, entitled to the benefit of a lighter sentence because, since the commission of the offence, provision had been made for a lighter penalty. HELD (by a majority) that the decision in R. v. Wan Siu Kei Cr. App. 486/92 should be followed and that Article 12(1) should be applied broadly and not restrictively.

Observations on s.80 District Court Ordinance and on the submission of counsel that judge is bound to express and record full reasons at time of sentence. Comments on inadequacies of clerical services in the District Court.

IN THE COURT OF APPEAL

1993, No. 4
(Criminal)

___________

_______________

J U D G M E N T

_______________

Litton, J.A.:

1. This is an appeal against sentence.

2. The appellant, aged 33 years, was convicted on his own guilty plea of "credit card frauds" on 22 December 1992 by His Honour Judge Lugar-Mawson in the District Court. There were four charges. The first charge, possessing forged dies, was brought under section 76(2) of the Crimes Ordinance, Cap. 200. The second charge, possessing an article fit and intended for use in the forgery of a document, was brought under section 76A of the same Ordinance. Those crimes were committed on 18 May 1992, before Part IX of the Crimes Ordinance was substantially amended by Ordinance No. 49 of 1992 which came into effect on 26 June 1992.

3. These crimes came to be discovered when, on 18 May 1992, the appellant went into a shop called Jewelry House in The Landmark, Central, and tendered one of the forged credit cards referred to in the first charge in payment for a diamond ring valued at $16,800. The proprietress of the shop accepted the card as genuine and the appellant left the shop with the ring. After leaving Jewelry House, the appellant proceeded to the shopping arcade in the Excelsior Hotel at Causeway Bay. There he was stopped by the police and, when searched, was found in possession of the diamond ring and the credit card sales slip relating to the forged credit card which had been used to buy the ring. He also had on him the forged credit card, and two others, as averred in the first charge. In relation to the theft of the ring, the appellant was charged with obtaining property by deception contrary to section 17(1) of the Theft Ordinance. This became charge 6.

4. The appellant was also in possession of another card which was blank apart from embossed details. Although it could not be passed off as a genuine credit card issued by any financial institution (because it was blank) it could be used to forge credit card sales advice slips. This became the subject-matter of the second charge in the charge sheet.

5. The appellant was also in possession of a forged identity card in the name of one CHEUNG Yiu-wah. So he was charged with being in possession of a forged identity card, contrary to section 7A of the Registration of Persons Ordinance, Cap. 177. This was the third charge in the charge sheet. No evidence was offered by the prosecution on charges 4 and 5 so he was acquitted on those.

6. In relation to charges 1 and 2 the appellant was sentenced to three-and-a-half years' imprisonment respectively; in relation to charge 3, he was sentenced to 15 months' imprisonment, the sentences on charges one, two and three to be served concurrently with each other. In relation to charge 6, dishonestly obtaining the diamond ring by deception, he was sentenced to 18 months' imprisonment. The concurrent sentences on charges one, two and three were ordered to be served consecutively to the sentence on charge 6, this sentence to begin after the expiry of an existing sentence he was serving. The effect of these sentences was that the appellant would serve a total of five years' imprisonment, to begin after the expiry of the existing sentence, which was a sentence passed on 4 June 1992 on four charges, of somewhat similar nature to the present charges for which he was sentenced to a total of two years' imprisonment.

Reasons for sentence

7. When the appeal was first opened before us, Mr. McCoy focussed his attack upon the way the District Judge stated his reasons for sentence, in compliance with section 80 of the District Court Ordinance. The submission was that the "Reasons for Sentence" bearing the date "22 December 1992", totalling 14 pages of type script, were not the reasons for sentence at all as given on 22 December 1992 and were never delivered in open court at any time. They were prepared after the appellant had filed his application for leave to appeal against sentence. This is borne out by the notes of proceedings, subsequently ordered by Silke, V.-P., which shows only that there were "oral remarks" made at the time of sentence; a document entitled "Transcript of judge's jottings of remarks to be made on sentencing of defendant" shows that the "Reasons for Sentence" now in the appeal bundle were, Mr. McCoy submitted, clearly an after-thought on the part of the judge. This is reinforced by yet a further document provided by the judge, dated 15 March 1993, which expanded upon the "Reasons for Sentence".

8. But, as the hearing progressed, and it occurred to counsel that these criticisms, even if valid, did not justify the sentences being set aside, and the application changed direction. By an amendment to the "perfected grounds of appeal against sentence", which we allowed, Mr. McCoy argued that the sentences imposed on charges 1 and 2 were wrong in principle: a point based upon the application of Article 12(1) of the Hong Kong Bill of Rights to the circumstances of the case, to which I will revert. This became the main ground of the application for leave to appeal.

9. Before I turn to the argument based upon Article 12(1) of the Bill of Rights, it might be helpful if I made a few observations concerning the reasons for sentence. Ideally, District Judges should give the full reasons for verdict and sentence at the time when the verdict and sentence is pronounced. Justice is then openly and fully administered, and this has the practical advantage of finality: the judge would not then need to revisit the matter, perhaps months later, when required to give full reasons for verdict and sentence for the purposes of an appeal. This may even result in the long run in a considerable saving of time.

10. However, District Judges operate under a grave handicap. They do not have the advantage of a tape-recording and transcription service. The members of this Court, after a matter has been dealt with in court, have the benefit of a transcript of the tape-recorded reasons within a day or two. Any inelegance of language or mistake made in the course of the oral pronouncement can be immediately corrected on paper. We are therefore able to "place on record" the reasons for our decisions normally within a short space of time. This is denied to the District Judges who have to record everything by hand. Moreover, the District Judges are operating under tremendous pressure. To a judge hard pressed to dispose of one matter in order to deal with the next, a quick short-term solution may appear attractive. Having to write everything out by long hand, it may be thought far too time-consuming to put down in writing the full reasons for sentence, even though the thought process is complete. Thus, both the oral reasons, and the notes which go into the record, might well understandably be in "shorthand". The ex-post-facto "Reasons for Sentence" produced for the purpose of an appeal then become, not an after-thought to justify the previous decision, but an expanded version of what the judge would have written down if time had so permitted.

11. The fault, as I see it, lies mainly in the back-up service. It is wholly unacceptable, in a sophisticated legal system like ours, that District Judges (and for that matter Magistrates) should be required to operate in this antiquated way. At whatever level of the Judiciary one views the matter, it is seldom possible to have oral reasons given immediately at the conclusion of proceedings which are word-perfect. They always need honing and fine-tuning. If a District Judge should, as His Honour Judge Lugar-Mawson did in this case, consider it proper, months after the hearing, to produce full "Reasons for Sentence", he should not be criticised for that fact alone unless the circumstances surrounding the passing of sentence were explored. This case ended just before the Christmas vacation. Could the judge have, conveniently, adjourned the case for, say, a day in order to give full reasons? Operationally, this may not have been possible. This could well explain the course which he took. These matters were not fully explored at the hearing because they were, in effect, abandoned by Mr. McCoy and I therefore say no more about this point.

Article 12(1) of the Bill of Rights

12. The appellant was charged in the first charge under section 76(2) of the Crimes Ordinance which, on conviction upon indictment, attracted a maximum penalty of seven years' imprisonment. The offence is "possession of forged seals and dies" which included forged credit cards. Upon its repeal in June 1992, this offence was replaced by section 75 which contains two subsections. The new section states :

"75. Offences of possessing a false instrument

(1) A person who has in his custody or under his control an instrument which is, and which he knows or believes to be, false, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

(2) A person who, without lawful authority or excuse, has in his custody or under his control an instrument which is, and which he knows or believes to be, false, commits an offence and is liable on conviction on indictment to imprisonment for 3 years".

13. The question, quite simply, is this: Since the commission of the offence, has provision been made by law for the imposition of a lighter penalty? If so, then the appellant is entitled to benefit thereby, in accordance with Article 12(1) of the Hong Kong Bill of Rights.

14. We have, in R. v. WAN Siu-kei, Cr.App. No. 486 of 1992, dealt with an identical point, in relation to section 76(1) of the Crimes Ordinance under which the defendant in that case was charged. Essentially, there are two ways in which Article 12(1) might be applied to the circumstances of the case: restrictively, as in R. v. Mohammad Faisal, Cr.App. No. 540 of 1992, where the court confines its consideration of the case to the way the charge against the defendant is formulated and ignores the underlying facts which are relevant to sentence; or broadly, as the majority of this court considered to be correct in R. v. WAN Siu-kei Cr.App. 486 of 1992. I, for my part, cannot follow the argument to the effect that we are bound to adopt the restrictive approach in R. v. Mohammad Faisal when, as seems clear, that approach to the interpretation and application of Article 12(1) of the Bill of Rights is in conflict with the approach to interpretation in R. v. SIN Yau-ming [1992] HKCLR 127 at 139-145 and also in R. v. LAI Kai-ming.

15. I accept, of course, that this court is bound to follow a clear previous decision of itself: A.G. v. LAU Chiu-tak [1984] HKLR 23. But, in the earlier case of R. v. Sze Yung Sang Cr.App. No. 486 of 1992 (C.A., March 23, 1993) the point that the court should have regard to the underlying facts in considering the application of Article 12(1) of the Bill of Rights was not argued. And, as the majority of this court has held in R. v. Wan Siu-kei, the restrictive approach to the interpretation and application of Article 12(1) of the Bill of Rights adopted in R. v. Mohammad Faisal is not consistent with previous decisions of this court. Thus, adopting the broad approach does not seem to me to offend the principle of stare decisis.

16. As to the second charge in this case, an identical point arises. The appellant was charged under section 76A of the Crimes Ordinance which imposed a maximum sentence of 14 years on conviction on indictment. That offence, the possession of implements for forgery, was replaced by section 76 which, again, has two subsections. It provides:

"76. The offence of making or possessing equipment for making a false instrument

(1) A person who makes or has in his custody or under his control a machine or implement, or any paper or other material, which to his knowledge is or has been specially designed or adapted for the making of any instrument, with the intention that he or another shall make a false instrument and that he or another shall use that false instrument to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

(2) A person who, without lawful authority or excuse, makes or has in his custody or under his control a machine or implement, or any paper or other material, which to his knowledge is or has been specially designed or adapted for the making of any false instrument, commits an offence and is liable on conviction on indictment to imprisonment for 3 years."

17. As can be seen, where the specific intent set out in subsection (1) is proved, the offence attracts a maximum sentence of imprisonment of 14 years. Where there is possession simpliciter - subsection (2) - the maximum term of imprisonment is three years.

18. In relation to charges one and two, the facts are clear. As regards charge one, not only did the appellant have in his possession the forged credit cards as averred in that charge, he plainly had the intention of using them; that is, using them to induce somebody to accept them as genuine, and by so accepting to do some act to their prejudice - the specific intent necessary in the new section 75(1) to attract a maximum sentence of 14 years - as he actually used one of those forged cards to obtain dishonestly a diamond ring from the Jewelry House: and hence was convicted of obtaining property by deception as averred in charge six. The same point arises in relation to the second charge. Taking a broad view of Article 12(1) of the Bill of Rights, and looking not simply to the "pleadings", that is, the formulation of the charges in this case, but to the underlying facts which justify the sentences of imprisonment imposed by the district judge, the decision of the district judge seems to me to be plainly correct.

19. The way the district judge approached the matter of sentence was this: for charges one and two, he considered a sentence in the region of four years' imprisonment after trial to be appropriate. Giving a discount for the guilty plea, he reduced it to one of three-and-a-half years' imprisonment for each offence. This exceeded of course the maximum of 3 years' imprisonment in the new sections 75(2) and 76(2), but was well within the maximum in the old sections under which the appellant was charged. It is, of course, also well below the maximum in the new sections 75(1) and 76(1) of the Crimes Ordinance. At the time of sentencing, this court had not yet given its decision in R. v. Lai Kai-ming. In an "Addendum to Reasons for Sentence" the judge referred to the specific intent set out in the new sections 75(1) and 76(1) and stated that, in this regard, the intent necessary in those sections was established by the evidence. He therefore considered that he was not bound by this court's decision in R. v. Lai Kai-ming to give the benefit of a lighter penalty to the appellant, under Article 12(1) of the Bill of Rights. In this regard, the judge seems to me to be correct.

20. For these reasons, the appeal against sentence should be dismissed.

Macdougall, V.-P.:

21. I regret to say that I am forced to the conclusion that I expressed in R. v. Wan Siu-kei that we are bound by the decision of another division of this court in R. v. Mohammad Faisal. Had I not come to that conclusion I would have agreed that this appeal should be dismissed. As matters stand, however, I would allow the appeal.

Bokhary, J.A.:

22. As far as article 12(1) of the Bill of Rights is concerned, my view of the relevant principle is the one which I expressed as a member of the majority in R. v. Wan Siu Kei, Criminal Appeal No. 486 of 1992, Sept. 1, 1993 (unreported). I respectfully agree with the way in which my Lord, Mr. Justice Litton has applied in this case the decision of the majority in that one. For the reasons which he gives, I too would dismiss this appeal against sentence. I also associate myself with what he says in regard to Reasons for Sentence to be given by District Court Judges.