HKSAR v. FELIX ROHRER

CACC 114/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 2001

(ON APPEAL FROM DCCC NO. 163 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The Applicant pleaded guilty in the District Court to a total of ten charges involving counterfeit travel documents and counterfeit travellers' cheques. On 16 March, he was sentenced by Judge Wong to terms of imprisonment totalling 4 years and 4 months. He now applies for leave to appeal against his sentence.

The facts

2. The Applicant is a Swiss national who was 27 years old at the date of his arrest. He arrived in Hong Kong on 21 December 2000. The passport which he presented at immigration control was a counterfeit German passport in a fictitious name. On the following day, he visited five foreign exchange outlets in Tsim Sha Tsui to cash 50 travellers' cheques which had purportedly been issued to Ralf Anderson. The Applicant had a counterfeit Danish passport in the name of Ralf Anderson which he used for the purposes of identification. Each of the travellers' cheques was for US$100.00.

3. The Applicant cashed 33 of the travellers' cheques obtaining a total of HK$24,893.00 at three of the outlets. He left the fourth outlet when he was asked for receipts for the purchase of the 13 travellers' cheques which he tried to cash there. He was caught at the fifth outlet when the member of staff to whom the remaining 4 travellers' cheques were presented became suspicious and called the police. Another 11 US$100.00 counterfeit travellers' cheques in the name of Ralf Anderson were found either on him or in the room he had rented the previous day.

4. The Applicant admitted these facts when he was subsequently interviewed by the police. He told them that he had lost his Swiss passport in Thailand and had run out of money. He had been approached in a bar by a Pakistani who had persuaded him to cash counterfeit travellers' cheques in Hong Kong. He was to hand over the cash he obtained to the Pakistani's associates in Hong Kong, and in return he was to be paid 10% of the proceeds when he returned to Thailand. He had been provided by the Pakistani with the counterfeit German passport.

5. He told the police that on his arrival in Hong Kong he had been taken to a building in Tsim Sha Tsui where he had rented a room. He had then been contacted by Pakistani associates of the man he had met in Thailand who had given him the 61 travellers' cheques and the counterfeit Danish passport, and who had taken him to each of the foreign exchange outlets to cash them. He had not been given all 61 travellers' cheques together in case he was caught. He had only been given those travellers' cheques which he was to cash there and then. After cashing the cheques, he had given the cash to the Pakistanis who had taken him to the outlets and who had watched him throughout. There was nothing to contradict what the Applicant had told the police.

6. On these facts, the Applicant faced two charges of using forged travel documents relating to the counterfeit passports. He faced five charges of using false instruments relating to the 50 counterfeit travellers' cheques which he had tried to cash. He faced three charges of possessing false instruments relating to the 11 counterfeit travellers' cheques found on him and in his room which he had not yet had a chance to cash.

The judge's approach

7. The judge took 18 months' imprisonment as his starting-point for the two charges of using forged travel documents. He reduced that by one-third to reflect the Applicant's guilty pleas, and he therefore sentenced the Applicant to 12 months' imprisonment on each of those charges to run concurrently with each other. He took 5 years' imprisonment as his starting-point for the eight charges relating to the counterfeit travellers' cheques. He reduced that by one-third to reflect the Applicant's guilty pleas, and he therefore sentenced the Applicant to 3 years' and 4 months' imprisonment on each of those eight charges to run concurrently with each other but consecutively to the sentences passed on the two charges relating to the counterfeit passports. The Applicant's sentences therefore totalled 4 years' and 4 months' imprisonment.

The proper approach to the sentencing of the Applicant

8. In the course of his sentencing remarks, the judge told the Applicant that he was proposing to adopt the totality principle. In view of the number of different charges which the Applicant faced, we agree that this was an appropriate case to apply that principle, but we rather doubt whether the judge in fact did so. The overall sentence which the judge imposed equated to an overall sentence of 61/2 years' imprisonment before the discount of one-third which the judge allowed. Yet there is no reference in the judge's sentencing remarks to the fact that in his view the Applicant's criminality, when viewed as a whole, deserved a global starting-point of 61/2 years' imprisonment. That is something which one might have expected the judge to have mentioned if he had indeed been applying the totality principle. We think that if the judge had appreciated that the sentences which he was imposing equated to a global starting-point of 61/2 years' imprisonment, he may well have appreciated that overall the Applicant's sentences were too heavy.

9. There appear to have been very few cases in Hong Kong dealing with the possession and use of counterfeit travellers' cheques. We have been referred to a number of cases involving counterfeit credit cards, but we are not persuaded that sentences for credit card fraud are a truly helpful analogy. After all, counterfeit credit cards survive the transactions in which they are used, and can be used again and again. Once a travellers' cheque has been used, it cannot be used again. We are not saying that the use of counterfeit travellers' cheques is necessarily less serious than the use of counterfeit credit cards, but the fact remains that sentencing guidelines for credit card fraud may not be as apposite to cases involving the use of counterfeit travellers' cheques as, say, cases involving the use of counterfeit banknotes.

10. The only case involving counterfeit travellers' cheques which has been cited to us is R v. Suchai Pruksachattaworn (CA 316/90), in which the Applicant pleaded guilty to possessing 499 US$500.00 counterfeit travellers' cheques which he was delivering for a fee of HK$2,000.00. The Court of Appeal regarded 5 years' imprisonment as a proper starting-point. In the present case, the Applicant was more than a mere courier. He flew into Hong Kong to carry out his part in the enterprise, and actually presented the travellers' cheques for payment. On the other hand, the counterfeit travellers' cheques to which the charges levelled against the Applicant relate had a face value of only US$6,100.00 compared with US$249,500.00 in the previous case.

11. We have borne in mind the circumstances in which the Applicant came to be involved in this operation, and though it does not begin to justify what he did, we note that he was to bear all of the risks of the enterprise and to be rewarded with very little of its proceeds. He was, if his version of events is anything to go by, being cynically exploited by persons who wished to gain at his expense, and who cared nothing for the risks to which he was to be exposed, save only to the extent that his arrest would result in the loss of the travellers' cheques and the travel documents which they had provided him with. We have also noted that, as it turned out, the Applicant himself made nothing out of what he had done, and although the Applicant's activities were brought to an end by the quick-wittedness of the salesman at the last outlet he visited, the amount which had been obtained by him was less than HK$25,000.00.

12. We bear in mind also that the offences relating to the counterfeit travel documents were all part and parcel of the scheme to cash the counterfeit travellers' cheques. The counterfeit German passport was provided to him to get into Hong Kong, and it is to be noted that if he had not lost his Swiss passport he could have gained entry into Hong Kong lawfully with the same limit of stay appropriate for a visitor as the limit of stay which was applied to the counterfeit German passport. And the counterfeit Danish passport was not provided to him to use as a travel document but simply as the means to confirm him as Ralf Anderson whose persona he was assuming.

13. In all the circumstances of the case, we have concluded that when the Applicant's crimes are looked at in the round, the overall starting-point for sentence should have been 4 1/2 years' imprisonment. Discounting that term by one-third to reflect his pleas of guilty, we think that the overall sentences (subject to one point to which we shall come in a moment) which the judge should have imposed should have totalled 3 years' imprisonment. The overall sentences which the judge actually imposed were therefore manifestly excessive.

14. The additional feature of the case is this. When sentencing the Applicant, the judge said

"A foreigner committing crimes in Hong Kong [should] not expect leniency because of the language problem and their hardship, if any, of being detained in a foreign jail. Hardship, if any, is self-induced and you do not deserve any sympathy."

There is a divergence of opinion as to whether that view is correct. Unfortunately, the Court of Appeal has not spoken with one voice over the years. Their different pronouncements on the topic have been gathered together in Cross & Cheung, "Sentencing in Hong Kong", 3rd ed., pp. 302-303. For our part, we recognise that an offender has only himself to blame if he finds himself in prison in a foreign land. He is the author of his own misfortune. But the fact remains that a foreigner in a prison in Hong Kong may well find prison a harsher regime to endure than a prisoner who has lived in Hong Kong. Depending on his nationality, he might find himself isolated linguistically and culturally, having to face an unfamiliar diet, and deprived of the opportunity of visits from his family and friends. The fact that prison could for these reasons be a harsher regime for a prisoner to endure is a factor which can, in an appropriate case, justify some reduction in the length of any sentence of imprisonment imposed. We think that that applies to a German-speaking Swiss national, who has never been to Hong Kong before, serving a sentence of imprisonment in Hong Kong. In all the circumstances, we propose to reduce the Applicant's overall sentence by another 3 months.

Conclusion

15. For these reasons, we grant the Applicant leave to appeal against his sentence. We order that the sentences of 3 years' and 4 months' imprisonment imposed on the eight charges relating to the counterfeit travellers' cheques (charges 2, 3, 4, 5 6, 7, 10 and 11) be set aside, and we order that there be substituted for them sentences of 2 years' and 9 months' imprisonment on each of those charges, to be served concurrently with each other and concurrently with the sentences of 12 months' imprisonment imposed on the two charges relating to the counterfeit travel documents (charges 1 and 8). The Applicant is accordingly sentenced to 2 years' and 9 months' imprisonment in all.