THE QUEEN v. LAM KI-WAN

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Headnote

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Uttering forged banknotes.  Appropriate sentence where accused is merely a carrier.

IN THE COURT OF APPEAL

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JUDGMENT

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Barker, J. A. :

1. The Applicant, LAM Ki-wan, (hereinafter referred to as D2) pleaded guilty to a charge of uttering 399 forged H K$1,000 notes, knowing the same to be forged and with intent to defraud.  He was sentenced to 4 years' imprisonment.  We allowed his appeal, and reduced his sentence to 2 years' imprisonment. We now give our reasons.

2. As a result of information received by the police that LEE King-fong (hereinafter referred' to as Dl) could supply forged bank notes, an undercover officer was introduced to DI on the 15th March 1984.  Further meetings took place between Dl and the undercover officer on the 16th and 23rd March 1984.

3. On the 23rd March 1984 D1 met the undercover officer at a restaurant in Nathan Road, as a result of which both men went to a bank in Tsimshatsui.  The officer there withdrew a quantity of cash sufficient to satisfy D1 that he had sufficient funds to buy 400 HK$1,000 forged notes at one quarter of their face value, that being the agreed price for such notes.

4. Dl and the officer then returned to the restaurant, and for the first time the officer saw D2, Dl confirmed that D2 had the forged notes in his possession and told D2 to deliver them to the officer in the lavatory. Thither D2 and the officer went; D2 took 4 bundles of forged notes from his pockets and handed them over to the officer. They then returned and joined D1.

5. The forged notes were then put in a briefcase carried by Dl and all three men left in order that the requisite cash could be withdrawn from the Bank to complete the bargain.   Police officers were waiting at the bank, and D1 and D2 were arrested.  D2 later mace a statement to the police in which he admitted having carried and delivered the forged notes on behalf of D1.   D2 was to have received $5,000 as a reward.

6. From the foregoing summary of the facts it is apparent that D2 played only a minor role. He was not the owner of the notes. He was not the printer. He was not the negotiator of the deal. He was merely a carrier and a muscle man.

7. The trial Judge thought that the appropriate sentence for D2 was one of 5 years' imprisonment, which he reduced to 4 years because of the plea of guilty.

8. Mr. Plowman, who appeared on behalf of D2, helpfully referred us to a number of decisions. It is not necessary to deal with all of them in this judgment.

9. In The Queen v. TO Keng-fai and another⁽¹⁾ the lst Applicant pleaded guilty to forgery. He was an employee at a printing shop and was asked by the 2nd Applicant to do the printing for him. The let Applicant was promised $40,000 and the 2nd Applicant stood to gain $700,000.  Notes of denomination over US$1.2 million were forged. In that case a sentence of 3½ years' imprisonment on the Ist Applicant was reduced to one of 2 years. Caution has to be observed, however, in approaching that case, for the main reason why the lst Applicant's sentence was reduced was because there was insufficient differential between his sentence and that imposed on the 2nd Applicant, namely 4 years, a sentence regarded by the Court as being on the light side.

10. In The Queen v. WAN Bing-kan⁽²⁾ the 3rd Defendant was charged with uttering 150 forged HK$1,000 banknotes. He pleaded not guilty, but was convicted. He was described as being "a mere delivery man". His sentence of 3½ years' imprisonment was reduced on appeal to 2 years.

11. Mr. Dalgleish, who appeared for the prosecution, referred us to a number of unreported decisions of the Court of Appeal, upholding sentences, in cases of uttering forged banknotes, of more than 2 years.  But in each of those cases the role of the applicant was significantly greater than a carrier, and in any event they all preceded WAN Bing-kan's case.

12. The only other case to which it is necessary to refer is The Queen v. CHAN Tien-yau⁽³⁾. The respondents in that case had been tried for conspiracy to utter forged documents and had been sentenced to 8 years' imprisonment.  The Attorney General applied for review because the maximum sentence for this offence permitted by law was one of 7 years' imprisonment.  The Court therefore set aside the sentence of 8 years and substituted a sentence of 7 years.  However, no argument was addressed to the Court as to the propriety or otherwise of a sentence of 7 years, and therefore it cannot be taken as giving any guidance as to the proper sentences to be imposed on a conviction for uttering forged banknotes.

13. Each case must depend upon its own facts.  Bearing in mind D2's immediate admission of the offence, his plea of guilty, the minor part he played in the offence and his personal circumstance we were of the view that the proper sentence was one of 2 years' imprisonment.

(1)    Cr. App. 35 of 1984

(2)    Cr. App. 136 of 1984