R. v. LAI KAI MING

IN THE COURT OF APPEAL

1992, No. 296
(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. This application for leave to appeal against sentence raises an important point under Article 12(1) of the Hong Kong Bill of Rights. The applicant was charged with the offence of being in possession of forged dies, namely eight forged credit cards knowing the same to have been forged, contrary to Section 76(2) of the Crimes Ordinance, Cap. 200, prior to the amendment of that Ordinance by Ordinance No. 49 of 1992.

2. It is common ground in this court that the offence as then constituted can properly be described as possession of forged documents, seals and dies. The applicant appeared before His Honour Judge Caird in the District Court on 24th June 1992 when he pleaded guilty and was convicted of that offence, the judge deferring the matter of sentence to a later date pending a probation report.

3. On 8th July 1992 the applicant went before the judge again when he was sentenced to an immediate custodial sentence of one year nine months' imprisonment. What happened between 24th June and 8th July is a matter of some importance. By Ordinance No. 49 of 1992 the whole of Part IX of the Crimes Ordinance, in which Section 76(2) appears, was repealed and a new Part IX was enacted. Ordinance 49 of 1992 came into effect on 26th June 1992.

4. This matter was not, however, brought to the judge's attention and everyone concerned, including leading and junior counsel then appearing for the applicant, seemed not to have been aware of the significance of the repeal and re-enactment of Part IX of the Crimes Ordinance.

5. Under the old Section 76(2) the maximum penalty for being in possession of forged documents, seals and dies was 7 years' imprisonment. The judge, plainly acting upon that assumption, took a starting point of two and a half years in considering the proper sentence to be imposed upon the applicant and reached the decision that the applicant should be imprisoned for one year nine months.

6. It is common ground in this court that the provision of law which, in effect, replaced Section 76(2) of the old Ordinance is Section 75. By the new law, the maximum penalty for possession of false instruments (which includes by definition forged documents, seals and dies) is imprisonment for 3 years.

7. The point Mr. Plowmen now makes on the applicant's behalf is this: Where, subsequent to the commission of an offence, provision is made by law for the imposition of a lighter penalty, the offender is entitled, by virtue of Article 12(1) of the Bill of Rights, to the benefit of the lighter penalty. This, he submits, is the clear wording and effect of Article 12(1) of the Hong Kong Bill of Rights. The applicant did not receive this benefit in the court below arising from the change in the law.

8. Mr. Casewell for the Crown argues that Article 12(1) of the Bill of Rights only applies where the legislature has retained the definition of the offence in its entirety and has simply lessened the penalty by amendment. Article 12(1), he says, has therefore no application where the entire offence itself has been redefined.

9. We cannot accept this restrictive approach. It is common ground that Section 75(2) has in effect replaced Section 76(2) as the crime of possession of forged instruments including credit cards. This is the offence in relation to which the applicant properly stands convicted; and in this regard the legislature has by Ordinance 49 of 1992 imposed a lighter penalty for the offence. We are of the view that the applicant is entitled under Article 12(1) of the Bill of Rights to receive the benefit of that change. Given a maximum penalty for this offence of 3 years' imprisonment, a starting point of two and a half years is plainly too high and would have been so regarded by the judge had his mind been brought to bear on the point.

10. The applicant has been in custody since 8th July 1992, that is just over six months. It is plain from the judge's careful analysis of the applicant's background and antecedents that he had considerable sympathy for the applicant. In his Reasons for Sentence he emphasized the fact that there was no element of use by the applicant himself of the forged credit cards involved. And there were present in this case strong points of mitigation. The judge seems to have accepted the opinion of the probation officer that there was no "direct correlation" between the applicant's background and his involvement in this offence. The judge considered anxiously the question whether, given the applicant's wholly favourable background, he should suspend the sentence of 21 months, and reached the conclusion with "considerable regret" that an immediate custodial sentence was the right penalty.

11. Given the somewhat unusual circumstances present, we have reached the conclusion that the applicant has been sufficiently punished in this case. We allow the application, treat the hearing of the application as the hearing of the appeal against sentence and allow the appeal insofar as we make an order that the applicant be discharged from prison custody as soon as is practicable.