THE QUEEN v. KWOK YUK LAM

IN THE COURT OF APPEAL

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JUDGMENT

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[Headnote: Entrapment: affect on sentence.]

Silke, J.A.:

1. KWOK Yuk-lam was charged with two other Defendants with a number of counts on the indictment. The first: uttering forged banknotes; the second: possession of forged documents, these being the banknotes themselves. There were two individual charges against his Co-Accused, each of them relating to possession of a single banknote. All three pleaded not guilty to the uttering of the banknotes but pleaded guilty to the possession of them.

2. There were 300 United States one hundred dollar Federal Reserve banknotes produced by the Accused. They were of course forged. No evidence was offered on the first count upon the plea to the second. All three Accused were sentenced to a total of 4 years' imprisonment. KWOK Yuk-lam,D1, now seeks leave to appeal against that sentence.

3. Mr. Stevenson, who appears for him in this Court, relies upon the home-made grounds, which are mainly ad misericordiam: that he had a clear record and that prison jeopardizes the livelihood of his wife and family. Any criminal act which results in the breadwinner of the family going to prison inevitably causes distress and difficulty to his family. It is something which should be in contemplation somewhat earlier than on an appeal against sentence.

4. Mr. Stevenson has also relied upon, and I shall come back to this in a moment, the ground where the Applicant says that he was made use of by a person he describes as his "friend", LAM Kin-hung. Mr. Stevenson makes a further point that D1 is not a "big fish" and that there was no resulting direct benefit to him from sale of these notes. It is accepted that he was not a "big fish" but he was certainly a cog. He did not gain money from the transaction because the transaction was frustrated by the actions of the police. This is not a factor of mitigation as to the criminality of the offence itself.

5. The facts, very briefly, were that on the 12th of March 1985 a Detective Sergeant, acting under-cover, met D1 at a restaurant in Tsuen Wan. They negotiated. The Applicant was to sell the notes to the "under-cover" Sergeant at $240 per note. The Sergeant gave the Applicant his pager number and later that same day he was contacted by the Applicant who said that he was having trouble contacting his supplier he would keep the policeman advised.

6. In the morning of the 15th of March, the Applicant again contacted the Sergeant. A meeting was arranged. They met. At that meeting they were observed by other police officers on duty. The 2nd Defendant at trial then arrived and he produced a sample of the counterfeit notes. There was further negotiation as to price which reduce itself to $210 per note. They were to meet again for the purpose of having the full number of notes made available.

7. On the afternoon of the 15th of March they did, the Applicant having contacted the Sergeant. The meeting was at the First Hotel in Mongkok. D1 booked a room there, other police were in the vicinity keeping surveillance. When the "under-cover" Sergeant arrived at the room booked by the Applicant, the 1st, 2nd and 3rd Defendants were there. All three had numbers of counterfeit notes upon them which they produced. The police then raided the room and the three were arrested.

8. But there is a background to the events we have just recounted, and it was a background which was brought to the attention of the Trial Judge by Counsel then appearing for the Applicant at trial. It was not disputed by the Crown. Mr. O' Mahony, who appears for the Crown here, has given us some useful further information.

9. LAM Kin-hung was a police informer. He was certainly an acquaintance of the Applicant. They met. LAM told the Applicant that he was desperately in need of money because of his mother's death and, as he had a broken leg, he was unable to gain employment. He asked the Applicant if he knew anything illegal that was going on whereby they could make some money. The Applicant spoke to the 2nd Accused, who knew of some forged notes which were "looking for buyers" and D1 told LAM about this. LAM promptly went to his police contacts and informed them. Police then entered into their own investigation. LAM was, we are informed, paid $5,000.

10. LAM Kin-hung was clearly a thoroughly unsavoury character and there was clearly entrapment. There was no suggestion that either D1, or the others, was in any way on the periphery of crime prior to this incident. D1 had a clear record.

11. Entrapment is not a defence in law to any charge but this type of entrapment can affect sentence. When the crime is induced in this fashion it may certainly be a mitigating factor. This is a form of entrapment which is to be deprecated.

12. While 4 years in a normal case would not be in any way wrong or excessive, we consider the entrapment here should be reflected in any sentence passed. This is not a factor which the Trial Judge seems to have considered in passing the sentence he did. While offences in relation to currency are serious and should be treated with gravity for the reasons we have stated we quash the sentence of 4 years' imprisonment and substitute therefor a sentence of 2 years' imprisonment. The application for leave is granted and the appeal allowed.