R. v. MOHAMMAD FAISAL

IN THE COURT OF APPEAL

1992, No. 540
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant faced two counts of possession forged bank notes. The first count charged that on 3rd July 1991, without lawful authority or excuse, he had in his custody or possession 5 forged banknotes each of which purported to be a banknote of $100 denomination United States currency issued by the Federal Reserve of the United States of America, knowing the same to be forged. The second count charged that on the same day he had further $100 forged banknotes in his possession.

3. The applicant was arrested at the time of the offence and was in custody from that date until 30th November 1992 when he was arraigned before Leonard J. in the High Court and charged with two offences of uttering forged documents contrary to s.74(1) of the Crimes Ordinance Cap.200. The particulars of these offences specified that he had:

"uttered five forged documents, each of which purported to be a banknote of $100 denomination United States currency issued by the Federal Reserve of the United States of America, knowing the same to be forged and with intent to defraud."

4. In the course of the arraignment the trial judge drew the attention of the prosecution to the fact that Part IX of the Crimes Ordinance had been repealed on 26th June 1992 by the Crimes (Amendment) Ordinance No.49 of 1992 which in s.100 dealt with "Offences involving the custody or control of counterfeit notes and coins" as follows:

"(1) A person who has in his custody or under his control anything which is common and which he knows or believes to be, counterfeit of a currency note or of a protected coin, intending either to pass or tender it as genuine, or to deliver it to another with the intention that he or another shall pass or tender it as genuine, commits an offence and is liable on conviction on indictment to imprisonment for fourteen years.

(2) A person who has in his custody or under his control, without lawful authority or excuse, anything which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin, commits an offence and is liable on conviction on indictment to imprisonment for three years."

5. The Crown informed the judge who accepted, quite rightly given the date of the offences, that the proceedings were correctly brought under the sections in effect at the time of the commission of the offences. The judge then went on to query whether it was proper to proceed on uttering charges when the forged notes were being offered to a person who was aware that they were forgeries. Although the Crown contended that uttering charges were properly laid in such circumstances, Mr. Schapel, who was appearing for the prosecution, indicated that he was, in view of the judge's doubts, prepared to amend the indictment. He stated that "a charge of possession would lie quite nicely in respect of each of these counts on the facts". The charges were then amended to allege offences under s.76(1) which reads:

"(1) A person who makes or has in his custody or under his control a machine or implement, or any paper or other material, which to his knowledge is or has been specially designed or adapted for the making of any instrument, with the intention that he or another shall make a false instrument and that he or another shall use that false instrument to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice, commits an offence and is liable on conviction on indictment to imprisonment for 14 years."

The accused pleaded guilty to each charge.

6. The facts, set out hereunder, were admitted by Mr. Ramanathan who appeared for the applicant:

"In June 1991, the Defendant was introduced by a Mr. Suliman to a United States undercover agent in Bangkok. It was agreed that the Defendant would supply the agent with certain goods in Hong Kong.

On the 30th June 1991, Faisal arrived at Kai Tak Airport from Thailand. After establishing that fact and that the deal could proceed, the agent followed on the 2nd July 1991.

In a joint operation with the Commercial Crime Bureau, Room 1222 of the Holiday Inn, Harbour View, Tsim Sha Tsui was wired for sound, as was the room telephone. All telephone conversations between Faisal and the agent and all conversations held in the room between Faisal and the agent were recorded.

At approximately 5.15 p.m. on the 3rd July, Faisal confirmed an appointment to meet the agent in the hotel lobby at 5.30 p.m.

The meeting took place as scheduled. During the meeting, 5 counterfeit US$100 banknotes were handed over to the agent. The agent handed over genuine US currency to the value of US$500 as a deposit for buying banknotes. One of the counterfeit notes was marked by the agent. Faisal was present at this meeting (first count)

At 7 p.m. that evening, Faisal telephoned the agent again at his room appointing 9:30 p.m. as the time of delivery.

The agent met Faisal at the appointed time in the hotel lobby and both went to Room 1222. Faisal handed the agent an envelope containing 100 counterfeit US$100 banknotes. The agent in return handed over 25 genuine US$100 banknotes which Faisal placed in his trouser pocket. (Second Count)

At approximately 9:58 p.m., Faisal left Room 1222 and was arrested by officers of the Commercial Crime Bureau from whom the genuine US$ currency was recovered.

The banknotes handed to the agent by Faisal have been confirmed by the CCB Counterfeit Expert to be counterfeit US banknotes.

Throughout, Faisal was not aware that the agent was a law enforcement officer.

Faisal has made three statements under caution."

7. The facts make it plain that the applicant was at the time of his arrest not merely intending to deal with the banknotes but was actually doing so. The judge said when sentencing:

"Taking into account the various reports which have been tendered to the court by the prosecution and the defence, it seems to me that in a normal case of this type where the background to the case involves a number of one hundred and five such forged banknotes, a proper starting-point after trial would be in the region of 6 years.

The face value of the banknotes in this case is not as great as it was in some of the cases which have been drawn to my attention. There was one case where the value was about HK$1.5 million. Bearing in mind the face value of the notes with which this court is concerned and bearing in mind what I have heard as to the circumstances in which you came to be involved in the offences, it seems to me that a proper starting-point in this case would be in the region of 5 years.

I note that there is no tariff and that each case must be considered on its particular merits. You have pleaded guilty at an early state, and it is clear that you were thinking of doing so even when you were before the magistrate. Although you changed your mind, it seems to me that it would be right to consider you as pleading guilty at the first opportunity before this court.

I note that it was through your cooperation that another culprit was apprehended, convicted and sentenced. I note also that you are a man with a clear record. I have considered the question of sentencing you in the light of the sentences which were imposed upon the person who appeared with you before the magistrate, but it seems to me that the circumstances of his case were different and that, whilst I note that sentence was imposed on him for possession of two forged banknotes, I do not consider myself bound to reflect that sentence in the sentence which you face.

As Mr. Ramanathan has said, these two counts in reality relate to the same set of facts and they should be dealt with together on the basis of what the appropriate global sentence should be. Giving you credit for the mitigating factors advanced on your behalf by Mr. Ramanathan, I sentence you on the first count to 3 1/2 years' imprisonment and on the second count to 3 1/2 years' imprisonment, both sentences to be concurrent."

While the judge did not set out the admitted facts in detail, he was clearly relying upon them when sentencing. He also took into account the plea of guilty at an early stage and the cooperation rendered by the applicant to the authorities. Neither counsel brought to his attention that Article 12 of the Bill of Rights Ordinance, which we set out below, had come into operation on 8th June 1991.

"Article 12 (1): No one shall be held guilty of any criminal offence on account of any act or admission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby."

8. It is the argument of Mr. McGuinniety that s.100(2) which provides for a maximum penalty of three years replaced s.76(1) and that the law therefore provides for the imposition of a lighter penalty for the offence to which the offender pleaded guilty and that he was entitled to be sentenced upon the basis that the maximum period of imprisonment for the offence was three years. Mr. McGuinniety referred to R. v. Lai Kai-ming (Criminal Appeal No.296 of 1992) in which Litton J.A. held that where there had been an amendment that reduced the maximum sentence for an offence passed between the date of the commission of the offence and the date of sentence, the offender was entitled to have the benefit of the amendment and to be sentenced in the light of the reduced penalty. Litton J.A. went on to hold that even where the amendment redefines the offence, an accused is entitled to the benefit of the new maximum. We were referred also to R. v. Sze Yung-sang (Criminal Appeal No.486 of 1992), in which the circumstances appear to have been identical to those before us which, following Lai Kai-ming's case, held that the new maximum penalty was applicable.

9. Mr. Holmes, who appeared for the Crown, asked us to consider this matter afresh. He submits that the offence of uttering forged bank notes, which was formerly dealt with by s.74, has now been replaced by s.99 of the Crimes Amendment Ordinance, and that the offence of possession of such notes, formerly dealt with by s.74, has been replaced by s.100 of the Amendment Ordinance. He contends that although there formerly was no specific offence of intending to pass a forged note as genuine, as is now provided by s.100(1), this offence was in fact dealt with by s.76 the element of intention being when an offence was charged thereunder a circumstance of aggravation. His submission is that s.100 covers exactly the offences which formerly fell under s.76 but divides them into two types of offences - one which involves only simple possession and the other which involves possession with intention to pass. He submits that the facts make it clear the applicant was being charged under s.76 with an offence which involved intention, albeit as an aggravating factor, and that the penalty of fourteen years for such an offence remains the same under s.100(1). There is, therefore, he argues, no provision in law for a lighter penalty. While we appreciate the ingenuity of this argument, we are satisfied that it is defeated by the simple fact that s.76 did not provide for any offence which involved an element of intention. That offence is a new one created by s.100(1). The offence provided for by s.76 is the same as that which is provided for by s.100(2), i.e. an offence of simple possession. It may be that possession with intent to pass was taken into account as an aggravating circumstance when offences charged under s.76 were dealt with, however, that was not an element of the offence. The offence to which the applicant pleaded guilty under s.76 was one of simple possession. That offence has been replaced by s.100(2) and the penalty provided therefor, is one of three years.

10. We reject the argument of Mr. Holmes and do not, therefore, need to consider the effect, had we taken a favourable view of it, of the earlier decisions. We do no more than remark that he might well have found them an insurmountable hurdle. The applicant must be dealt with upon the basis that the maximum penalty was one of three years. The applicant has been in custody since 3rd July 1991. That being so we are satisfied, given the plea of guilty and the other mitigating circumstances to which we must give due weight, that the concurrent sentences of three and a half years must be varied to concurrent sentences which will effect the applicant's immediate release.

11. Before parting from this case we feel we must comment on the failure of both prosecution and defence to appreciate the maximum sentence for this offence. We find it hard to understand why the prosecution were unaware of the change. The changes in the legislation were prepared by the Drafting Division of the Attorney General's Chambers and we are surprised that these important changes were not specifically drawn to the attention of the Prosecutions Division. Clearly better liaison is called for to prevent this happening again. The failure to appreciate these changes was exacerbated by the fact that the trial judge actually referred both counsel to the changes in the substantive law at the commencement of the hearing. There has been a spate of appeals brought in similar circumstances to this appeal with the result that substantial public funds have been expended in putting these matters right.