YAU CHI KEUNG v. R.

IN THE COURT OF APPEAL

1993, No. 316
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. This is an application for leave to appeal against sentence. The applicant was charged originally and convicted on two counts; one of forgery of documents kept for certain purposes under the Immigration Ordinance contrary to section 42(2)(a)(i) of the Immigration Ordinance for which this applicant was sentenced to four years' imprisonment. He was also convicted on another count of possession of equipment and articles fit and intended for use in the forgery of documents contrary to section 76A(1) of the Crimes Ordinance for which he was also sentenced to four years' imprisonment to be served concurrently with the sentence on the count brought under the Immigration Ordinance.

2. The sentencing took place before Deputy Judge Daniell after trial before a jury on 10 June 1993. It was not until 26 January 1994 that he applied for leave to appeal against the two sentences out of time.

3. In relation to the sentence for the offence under the Immigration Ordinance we refused this applicant's leave to appeal out of time. However, in relation to the conviction for the offence under the Crimes Ordinance we gave him leave because, in his proposed grounds of appeal, he raised a substantial point of law. It arises in this way.

4. The crimes for which this applicant stood convicted occurred on 17 January 1991. At that time the maximum sentence for a conviction under section 76A(1) of the Crimes Ordinance was 14 years' imprisonment. This section in the Crimes Ordinance as it then stood covered a wide spectrum of criminality.

5. In June 1992, the old section 76A of the Crimes Ordinance was repealed and replaced by section 76(1) and (2). The old offence of "possessing equipment for forgery" was renamed as the offence of "possessing equipment for making a false instrument". In subsection (1) of the new section 76 an ingredient of the offence is this: There must be intent that the false instrument be used to induce someone to accept it as genuine and thus to act to his prejudice. Where this intent is present, the maximum term of imprisonment is 14 years. However, for the crime of "simple" possession under subsection (2) the maximum term of imprisonment is three years.

6. It would appear that this change in the law was not brought to the attention of the deputy judge when he imposed sentence on 10 June 1993. Nor were the provisions of Article 12(1) of the Hong Kong Bill of Rights brought to his notice. Article 12(1) provides as follows: Where, since the commission of an offence, provision has been made by law for the imposition of a lighter penalty, a defendant is entitled to benefit thereby.

7. The applicant's argument in this court is quite simply that he should have received the benefit of the lighter penalty under section 76(2) at the time when the deputy judge sentenced him in June last year. There was nothing in the facts either proved or admitted at the trial which made this case more than one of "simple" possession. The ingredients which might have brought this case within the ambit of section 76(1) were simply not present. Had this applicant been charged under the new law, he could only had been charged under section 76(2) for which the maximum penalty was three years' imprisonment.

8. In these circumstances Crown counsel has rightly conceded that the sentence of four years' imprisonment was wrong. We accordingly set aside the sentence of four years' imprisonment on the count of possession of equipment brought under the old section 76A(1) of the Crimes Ordinance and substitute for that a sentence one of two-and-a-half years' imprisonment, to be served concurrently with the sentence on the earlier count.