R. v. LAM SIU WAN

IN THE COURT OF APPEAL

1996, No.241
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. This applicant faced two counts, one of landing counterfeit coins contrary to s.105(a) of the Crimes Ordinance, Cap.200, and another of landing in Hong Kong without permission contrary to s.38(1)(a) of the Immigration Ordinance, Cap.115. It was particularized in the first count that he, on 17th October 1995, at Shaukeiwan pier in Hong Kong landed counterfeits of protected coins, namely 12,263 Hong Kong $10 coins and 289 Hong Kong $5 coins. At the same time and place he, being a person with no right of abode, without permission, landed in Hong Kong. He pleaded guilty in the District Court to both charges and was sentenced by Judge Chua to three years and three months on the first and 15 months on the second and the sentences were ordered to be concurrent. He now appeals against those sentences saying that they were too heavy given that he had no previous convictions in Hong Kong, that this was his first attempt to enter Hong Kong illegally, that he is the sole breadwinner of his family and that he was only acting as a courier to bring in the coins. He also complains that the judge did not order the prison terms to run concurrently.

2. We can understand that he has found some difficulty following the approach to sentencing of the trial judge. We will return later to that matter.

3. The trial judge when sentencing said:

"I accept what Mr CHAN (counsel of the applicant) has just put forward on behalf of the 1st defendant (the applicant), that he was a courier and was to be paid $10,000. What then should be the starting point, given the maximum for the offence he is charged, is 10 years, as opposed to 14 years and the face value of the counterfeit coins is considerably less than in the Suchai case? I think I will use the starting point of 3½ years; this I discount to 2 years and 4 months for his plea.

Mr CHAN accepts the current tariff for the 2nd offence on a plea of guilty, is 15 months; I see no reason to differ. Mr CHAN also accepts this must be cumulative to the sentence on the 1st offence. This brings the total to 3 years and 7 months. On a totality principle I think I can reduce this to 3 years and 3 months. So this is the sentence I impose on the 1st charge, and 15 months on the 2nd charge, both to run concurrently with each other."

4. This unusual approach whereby the judge increased the sentence on the first charge from two years and four months, which she considered proper, to three years and three months in order to comply with the totality principle is not one that commends itself to us. It would have been more appropriate to have ordered that the applicant serve 28 months on the first count and fifteen months on the second count with four months of the second count to be served concurrently with the 28 months on the first count. Had that been done she would have achieved the sentence of 39 months which she thought was proper.

5. The question for this court is whether the judge was right in her view that three years and three months was a proper totality for the two offences. This applicant came to Hong Kong carrying a very substantial quantity of counterfeit coins and must have known that if those coins went onto the market the people and the economy of Hong Kong would suffer. The family matters which he now puts before us in mitigation are considerations which he should have had in mind before undertaking this criminal enterprise. Illegal entrants who, in one way or another, put the people of Hong Kong at risk of financial loss can receive little sympathy from the courts. The sentences were perfectly proper ones. Nothing has been suggested that would allow us to interfere with them.

6. The application is therefore refused.