THE QUEEN v. CHAN CHI KEUNG AND ANOTHER

----------------------------

-----------------

JUDGMENT

-----------------

Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. The two applicants - D2 Chan Chi-keung and D3 Wu Chi-lik - were convicted with their co-defendant - D1 Wong Hoi-chuen - of various charges of forgery by Mr. Candy sitting as a Deputy Judge of the District Court.

3. D2 had pleaded guilty to five charges and gave evidence for the Crown. The sentences imposed upon him in respect of those charges, viz., Charge 1 - Conspiracy to utter forged dies; Charge 9 - Possession of forged dies; Charge 10 - Possession of implement fit for forgery; Charge 11 - Uttering a forged identity card and Charge 12 - Remaining in Hong Kong illegally, were imprisonment of two years and nine months on each of the first three charges - those sentences to run concurrently - and the last two charges concurrent sentences of 18 months on each. The two sets of sentences were ordered to run consecutively, thereby making a total term of imprisonment of four years and three months. He seeks leave to appeal against sentence.

4. D3 was convicted after trial of Charge 1 supra for which he was sentenced to four years' imprisonment, and also of Charge 2 - Conspiracy to sell forged dies, for which he was sentenced also to four years imprisonment. The two sentences were to run concurrently. He now seeks leave to appeal against conviction and, if necessary, sentence.

5. Charge 1 reads:

        WONG Hoi-chuen, CHART Chi-keung and WU Chi-lik on divers days between the 8th day of November 1989 and the 15th day of November 1989, in Hong Kong, conspired together to utter forged dies, by dishonestly agreeing to use certain forged credit cards in alleged payments for goods and services obtained from various commerical premises in Hong Kong.

6. Charge 2 reads: -

        CHAN Chi-keung and WU Chi-lik on or about the 15th day of November 1989, in Hong Kong, conspired together to sell forged dies by agreeing to sell certain forged credit cards to WONG Hoi-chuen and persons unknown.

7. The Crown's case was that, on the 15th November 1989, a party of police arrested Dl at a restaurant for having used a forged credit card to pay for his meal. Whilst at the police station D1 implicated D3 in the conspiracy to use forged credit cards for the purchase of goods. As a result, D2 and D3 were arrested by the police on the evening of the 15th November.

8. At the trial the forged credit cards were accepted by the learned trial judge as having been forged. He also found as a fact that some of those cards had been used to purchase goods. The main evidence against D3 is contained in his two cautioned statements to which the judge gave full weight. Accepting D1 and D2 as accomplices the judge, after warning himself of the dangers of convicting on the uncorroborated evidence of an accomplice, came to the view that they were credible witnesses. He further found that the evidence of D2 was corroborated by the contents of D3's cautioned statement and, further, by the two shopkeepers who gave evidence of how the credit cards were used for purchases of goods from their shops.

9. The gist of what D3 said under caution was that D2 had told him he was in possession of forged credit cards given to him by a man called Fei Lung, known to be a forger of credit cards. On the 15th November 1989 Dl paged D3 and asked for forged credit cards - D3 having previously recommended a person from whom D1 might obtain forged credit cards. Over the telephone D3 asked D1 to take with him $10,000 to the bar on the first floor of the Park Hotel to be exchanged for two forged credit cards. After this conversation D3 paged D2 telling the paging station to relay the message to D2 that "Yat Pun Chai" (accepted as being Dl) wanted to have cards and that D2 should take two cards to the hotel. D3 had in mind to sell the two cards to Dl for $5,000 each, keeping $2,000 for himself and giving $3,000 to D2 for each card.

10. In considering the case against D3 on Charge 1, the learned trial judge noted that Dl had previously bought a forged credit card from D3 for making purchases in shops and D3 was aware of the purpose for which D1 wanted the cards.  D2 in evidence said that he and D3 and a man called Shanghai B had used forged credit cards to buy goods. The judge concluded:

        "As between Dl and D3 there was not only the agreement to buy/sell the forged credit cards there was also the agreement that it (sic) would be used to purchase goods. As between D2 and D3 there was the agreement to jointly use the forged credit cards. D3 was the pivot on which the agreement to use the forged cards rested. While there may have been 2 separate transactions the agreement was the same in each case."

11. On both Charge 1 and Charge 2, there was clear evidence that D3 intended to sell two forged credit cards to Dl and that he paged D2 to bring the cards to the Park Hotel. The judge found as a fact that D2 knew D3 wanted the cards to sell and that was why he was asked to bring the cards to the hotel, and it mattered not that D2 did not know D1 was the intended purchaser.

12. Without impeaching the propriety of Charge 1 in any way, Grounds 1 and 2 of the Grounds of Appeal suggest that the evidence disclosed two different conspiracies: one between D1 and D3 and a separate and distinct one between D2 and D3. There was no single conspiracy between D1, 2 and 3. R. v. Griffiths [1965] 49 Cr App Rep 279 was relied upon in support, but that case deals with separate conspiracies quite different in nature. Here we have a situation where the intention of all three accused was to use the forged credit cards to purchase goods from shops. Dl wanted forged cards and approached D3 for them knowing that D3 would obtain them for him from a supplier. D2 was asked by D3 to provide the cards because a person called "Yat Pun Chai" wanted them according to D3's own cautioned statements. In those circumstances, D3 was indeed the "pivot" described by the judge. In our judgment there is nothing in those two grounds of appeal.

13. It is argued under Ground 3 that the judge should have ruled that D3 had no case to answer on Charge 1 as D1 had the intention only to buy from D3 two forged cards and there was no evidence to show D3 conspired with Dl and D2 to utter forged dies. There was no nexus between Dl and D2. For reasons stated in the previous paragraph, this ground too must fail.

14. Grounds 4, 5 and 6 deal with the way the judge assessed D2's credibility. The judge considered the inconsistency between D2's evidence and his cautioned statement. He was alive to the untruths told by D2, but at the end of the day, concluded, as he was entitled to, that D2 was a credible witness. There was however one factual error in the Reasons for Verdict. The judge found that D2 started to tell the truth in his cautioned statement after having read D3's cautioned statement. D3`s statement (Ex P1) was taken between 5.20 p.m. and 7.40 p.m. of the 16th November 1989, whilst the relevant statement (Ex P4) of D2 was taken between 4.40 p.m. and 7.35 p.m. in the same evening. On the record, it appears that Ex P1 was only shown to D2 to read at 8.35 p.m. In view of the weight of evidence against D3, including his own cautioned statements, we do not think this error is fatal to the verdict.

15. Ground 7 complains that the judge failed to resolve a material discrepancy in D2's evidence. In chief he said that, in his telephone conversation with D3, D3 only asked him to bring the forged credit cards to the Hotel and that there he gave them back to D3 and that he did not know why D3 wanted the cards. In cross examination D2 said that he had given a true answer to the police in his cautioned statement when he said that, in the telephone conversation, D3 told him that someone wanted to buy two forged cards. There is, it is suggested, a direct contradiction and Ground 8, which supplements Ground 7, alleges that the judge erred in law in finding that D2's answer in his statement was "further" evidence about the telephone conversation between himself and D3 that the "someone" wanted to buy two forged cards when in fact this was an answer directly contradictory to D2's evidence in examination-in-chief.

16. The judge must have been aware of this inconsistency. It had been fully considered at trial. This was a jury question. While it would have been preferable had the judge made specific reference to the differing evidence it is clear that he placed greater reliance on D2's first reaction as indicating the true situation. In his assessment of the witness, whom he found to be credible, and his evaluation of his evidence, he was entitled to take the course he did.

17. The last ground of appeal, Ground 9, is that the judge should have ruled that D3 had no case to answer on the 2nd Charge as (i) the evidence showed that D2 gave contradictory evidence as to whether he knew why D3 wanted the cards, and (ii) in any event, even if D2 knew that D3 wanted to sell the credit cards to Dl, there was at most a conspiracy to sell to D1 and not to D1 "and persons unknown".

18. We have already dealt with the way in which the judge assessed the credibility of D2 as a witness. As to the second limb of this ground of appeal, we are of the opinion that if an accused is charged with conspiracy with say four others and the prosecution is able to prove the conspiracy between himself with say only two others, a verdict of guilty may nevertheless be entered against him. This ground too must fail.

19. D3's application for leave to appeal against his convictions is dismissed.

Sentence

20. It became necessary in the course of the hearing - to allow Mr. H.Y. Wong for D3 to consider the effect of In Re Attorney General Reference [1988] 1 HKLR 375 on his submissions - to interpose Mr. Dixon Tang's submissions as to sentence on behalf of D2. As any submissions Mr. Wong might find it necessary to make could impinge on matters concerning D2 we reserved our decision on Mr. Tang's submissions until we have given our decision on D3's conviction application and heard Mr. Wong. Having dismissed D3's application on his convictions, we have heard Mr. Wong on sentence.

21. We now come to the applications for leave to appeal against sentence.

22. As a general point it has been argued for D3 that the starting point adopted by the trial judge of five years was too high. We have not been able to find any cases which deal with sentences on forged identity cards and the researches of counsel have not disclosed any. We shall simply content ourselves in saying that offences of the type that we are now considering strike at the fabric of the economic well-being of society, though not perhaps to the same extent as do forged bank notes, and must be treated as serious offences.

23. In the circumstances of this case, the starting point of five years adopted by the judge, though a little on the high side, is not, in our judgment, wrong.

24. In passing sentence on D3, the learned judge noted that D3 was the person who provided all the cards and was the originator of all these cards. In relation to Charges 1 and 2, he adopted a starting point of five years for D3. It was further noted that the only mitigating feature was that D3 had given useful information to the police which had been used with some benefit. For this, a generous reduction of 12 months was given: we say generous particularly because of the plea of not guilty on the part of D3. The grounds of appeal against sentence allege (1) that in the light of the small amount of money involved, a starting point of five years is too high, (2) the judge failed to give sufficient weight to the fact that D3 had given useful information to the police, and (3) that without D2's evidence it would be wrong to pass a sentence on the basis that D3 was the person who provided all the cards and was the originator of these cards.

25. On the first ground of appeal we have already indicated that the starting point of five years is not wrong.

26. As to the second ground of appeal, the judge took into consideration the evidence of Superintendent Cowley Who said that D3 had assisted the police in obtaining very high quality H.K. identity cards and forged credit cards.

27. In respect of the third ground of appeal, it is clear that the judge accepted the evidence of D2.

28. There is, in our view, nothing in any of the arguments advanced before us in respect of sentence. His application for leave to appeal against his sentences is dismissed.

29. For D2, it was submitted that he was only a courier and he was all the more easily used by D3 as he was an illegal immigrant. Our attention was drawn to the different sentences meted out to D2 and D3. It was suggested that for a plea of guilty and the giving of evidence for the Crown, a reduction of 40 per cent ought to be given. It was further argued that the operation D2 was engaged in was small, and in relation to five of the six forged cards which formed the subject matter of Charge 9 the amount deceived was only $53,184.

30. In the Reasons for Sentence, however, the judge noted that D2's involvement was greater than that of D1, who was sentenced to 18 months' imprisonment on each of the six charges, viz., Charges 3 to 8, sentences to run concurrently. D2 was an active conspirator with D3 in using the forged cards and he also possessed a forged identity card and had remained in Hong Kong illegally. He was the one who held the cards whilst others used them. The judge gave him credit for his plea of guilty at an early stage of the trial and for giving evidence for the prosecution. He was however not a "supergrass" and was not entitled to as much as a two-thirds reduction. Adopting a starting point of four years for D2 in respect of Charges 1 and 9, the judge gave a reduction of 12 months for 02's giving evidence and a further three months for his plea.

31. In the light of the appellant's plea of guilty and his having given evidence for the Crown, we are of the view that the totality of four years and three months is too high. We will therefore reduce the sentences on Charges 11 and 12 to nine months' imprisonment on each, those sentences to run concurrently but consecutively to the sentences on the other charges, thereby making a total of three and a half years' imprisonment.

32. We allow D2's application and treat the hearing as the hearing of his appeal against sentence. We allow his appeal to the extent indicated.