THE QUEEN v. SUCHAI PRUKSACHATTAWORN

Headnote

Applicant charged with possession of 499 forged banknotes each purporting to be a Bank of America US$500 Travellers Cheque. Applicant appeals against sentence of three and a half years on the ground that full consideration was not given to the fact that he was only a courier who was to be paid a fixed sum of $2,000 and was not involved in negotiations or disposal of the forgeries. Held: five years was a proper starting point for possession by a courier and that a sentence of three and a half years gave due account to the mitigating factors.

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JUDGMEWT

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Power, J.A. :

1. This is the judgment of the Court.

2. The applicant pleaded guilty before Judge Gall (as he then was), sitting as a deputy judge of the High Court, to a charge that on 27th October, 1989 in Hong Kong, without lawful authority or excuse, he had in his possession 499 forged banknotes, namely 499 documents each purporting to be a Bank of America US$500 Travellers Cheque, knowing those banknotes to be forged. Initially, he had pleaded not guilty but, after hearing the evidence of two police officers on the voire dire, he changed his plea. The trial judge sentenced him to imprisonment for three and a half years. He now appeals against that sentence.

3. The facts were that at about 4.50 p.m. on 27th October in the Furama Hotel, he was arrested by police officers. When they declared their identity, he dropped a brown envelope he had been carrying which was found to contain the forged notes, the subject of the charge.  He admitted under caution that he had agreed to carry the forged travellers cheques to the Furama Hotel where he was to deliver them to an unknown Chinese male. He stated that he was to receive HK$2,000 for making that delivery. It was agreed that the forged cheques were poor quality forgeries containing spelling errors and that it was unlikely that they would have remained undetected if circulated.

4. Before the judge it was urged by Mr. Mayne, who then appeared for the applicant, inter alia, that the applicant was only a courier, that the forgeries were amateurish, that he was a man of mature years, being 55 years of aye at that time, and was not in good healt.

                The trial judge when sentencing said:

 

"I have taken into account all that has been said on your behalf by Mr. Mayne. I accept that you are not a young man but you are not so old that that should be a factor in reducing your sentence."

The trial judge was, in our view, quite right in this observation. This is not proved by Mr. Macrae, who appears today for the applicant, as a factor to which, of itself, particular weight should be attached but he does suggest that, when taken along with all of the circumstances including the ill health of  the applicant, it should have been given greater consideration by the trial judge. The trial judge accepted that the applicant had played a minor part in the matter and that it was an unsophisticated forgery. He went on to say:

"You did, however, play a part in forging documents."

We are satisfied that what the judge meant by this was that he took a part in disseminating forged documents which are used internationally for trade and enable people to spend their money in different countries.

                The Judge went on:

 

"Your action serves to undermine international confidence that is necessary in travellers' cheques.

 

        I give you credit for your plea of guilty although it cannot be as much as it might otherwise be expected because the plea comes late and in the face of strong evidence against you."

He indicated that he took a starting point of five years and that, given the mitigating factors that had been urged, thought that the appropriate sentence would be three and.a half years.

                Mr. Macrae has submitted that the sentence failed to give full consideration to the fact that the applicant was playing no part other than that of a courier and was to receive as reward only a set sum of $2,000. He points out moreover that, on the facts accepted by the trial judge, he was not playing any part in negotiations, nor was he to be involved in the disposal of the forged traveller cheques. He suggests that insufficient weight was given to the fact that the forgeries contain palpable errors.

                He referred us to a number of cases. The only one to which we need make reference is R. V. CHOW,Tin-wah Cr. App. No.549 of 1989. In that case, the Court of appeal indicated that the appropriate sentence for forgery and uttering was one of six to seven years. Mr. Macrae points out that there is a clear distinction to be drawn between the offence of uttering with intent to defraud under s.74 of the Crimes Ordinance, where the maximum sentence is imprisonment for life, and the offence of possession, the offence with which this applicant is charged, where the maximum sentence is one of fourteen years.

                It is anomalous that in CHOW Tin-wah, the charge before the court was one of possession. However, the possession involved, on the admission of the defendant, the passing of some of notes which was, no doubt, why the court indicated that six years, the appropriate sentence for uttering, was a proper starting point when dealing with the offence as charged. We think it timely to indicate that while six to seven years has been indicated as a proper starting point for forgery and uttering where substantial amounts are involved, it is our view that, where very large amounts of impeccable forgeries produced by sophisticated means are involved, substantially higher sentences might well be in order.

                The real question for this court is whether five years was a proper starting point where the possession was that of, in effect, a courier who was not involved in anything other than the transporting of the forged instruments. Forgeries such as this not infrequently pass from hand to hand before eventually being foisted upon an innocent member of the public. Every person in such a chain must be aware that the eventual aim is to work a substantial fraud upon an innocent party. We are quite satisfied that five years was a proper starting point and that a sentence of three and a half years gave due account to the mitigating factors. The application is dismissed.