The Queen v. Tam Yiu Chung

IN THE COURT OF APPEAL

Criminal Appeal
No. 84 of 1992

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Coram: Hon. Yang , C.J. and Macdougall, J.A.

Date of Hearing: 15 July 1992

Date of Judgment: 15 July 1992

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JUDGMENT OF THE COURT

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Macdougall, J.A. :

1.  The applicant pleaded guilty before Her Honour Judge C.B. CHAN to two charges (charges 1 and 2) of being in possession of forged dies contrary to section 76 (2) of the Crimes Ordinance, Cap. 200; one charge (charge 3) of being in possession of articles fit and intended for use in the forgery of a document contrary to section 76A of the Crimes Ordinance; six charges (charges 4, 6, 8, 10, 18 and 21) of obtaining property by deception contrary to section 17 of the Theft Ordinance, Cap. 210 and, finally, one charge (charge 31) of being in possession of forged bank notes contrary to section 76 (1) of the Crimes Ordinance. He was sentenced to two and a half years' imprisonment on all charges but charge 31 to which he was sentenced to imprisonment for one year. The judge ordered that the two and a half years' sentences be served concurrently with each other but consecutively to the sentence on charge 31, thus making an overall sentence of three and a half years.

2.  Charge 1 related to three forged credit cards, two of which had been used by the applicant. It was as a result of his repeated use of one of these cards that he was eventually apprehended. On arrest, a search of his person revealed that he was in possession of the three cards.

3.  Charge 2 concerned five forged credit cards that were found after his arrest in a locked suitcase at his home. He asserted that another person had asked him to keep these cards together with forged bank notes which formed the subject of charge 31 in his custody and not to use them. The judge stated that since there was nothing to dispute the truth of this assertion she accepted it for the purpose of sentencing.

4.  Charge 3 related to two white plastic cards with embossed numbers. Cards such as these are used with the compliance of merchants in creating fictitious transactions.

5.  Charges 4, 6, 8, 10, 18 and 21 related to the obtaining of property by deception contrary to section 17 of the Theft Ordinance. They concerned the use of a Mastercard which was one of the credit cards referred to in charge 1.

6.  Charge 30 was a similar charge which related to the use of a Visa card which also was also one of the credit cards referred to in charge 1.

7.  Charge 31 was one of possession of 53 forged one hundred dollar US bank notes contrary to section 76 (1) of the Crimes Ordinance.

8.  It was contended by counsel for the applicant and accepted by the judge that the offences had been confined to Hong Kong and had been committed following pressure from loan sharks to repay a loan that had been incurred by the applicant's deceased father. The judge also took into account the fact that the applicant had a clear record.

9.  Mr. McNamara, who appeared for the applicant in this court but not in the court below, submitted that the sentences should have been made concurrent in view of the manner in which the offences had been committed, the fact that they had extended over what is said to be the relatively short period from the 21 February to 7 March 1991, and the factors which were advanced in mitigation and accepted by the judge. He further submitted that the judge also erred in failing to give the applicant sufficient discount for mitigating factors, particularly the assistance he had given the police by describing the man whom he alleged had handed him the cards referred to in the first three charges and the forged United States bank notes in Charge 31.

10.  Mr. McNamara informed us that after sentence had been passed the police had visited the applicant in prison and that he had then identified the other man by picking him out from an album of photographs. This information, however, was of no value to the police for it then came to light that the man had been murdered in Thailand.

11.  In support of his submission that the overall sentence was manifestly excessive, Mr. McNamara cited R. v. Chan Fu Kui [1986] HKLR 967 where Roberts CJ in delivering the judgment of the court said that “a reduction of 50% was a perfectly proper one to permit in an ordinary case where the defendant had pleaded guilty and had given assistance to the prosecution in other cases.”

12.  It was Mr. McNamara's contention that a discount of 40% was appropriate in the present case and, accepting that the starting point for sentence should have been 4 years, the resulting overall sentence would properly be one of 2 ½years.

13.  We wish to emphasise the view expressed by this court in R. v. Ng Hon-kit (unreported) Criminal Appeal 90 of 1990 and re-iterated in R. v. Lau Yau-Yuen (unreported) Criminal Appeal 337 of 1990 that Chan Fu Kui should not be taken to have established any guideline to be generally followed and that each case must depend very much upon its own circumstances. Moreover, credit should only be given for genuine cooperation which results in the furnishing of reliable and useful information. Offenders who simply tell the police what they already know or who give information which is merely vague or which relates to alleged offenders who are safely outside the jurisdiction, should not expect to receive a reduction in sentence on that account. Promises to cooperate do not justify any reduction. Where an offender gives valuable cooperation after the final disposal of his own case, it then becomes a matter for the executive to take such action as it considers appropriate by way of remission of sentence.

14.  Having said that, we entirely agree that the intervention of some supervening event over which the offender has no control, such as the death of the person in respect of whom he had given reliable and useful information or had made a genuine undertaking to give evidence for the prosecution in a pending trial, should not prejudice his claim to a discount in sentence.

15.  We do not accept Mr. McNamara's submission that the sentence for the offence of being in possession of forged banknotes should have been made concurrent with the sentences for the offences relating to credit cards. It was an entirely separate and distinct offence and the judge very properly imposed a consecutive sentence for it.

16.  As for the credit card offences, it is a notorious fact that credit card fraud constitutes a serious problem in Hong Kong. Those who engage in that type of activity can expect revere punishment from the courts, as can those who possess forged banknotes.

17.  The applicant was caught red-handed. There was therefore no justification for a large discount in sentence. In our view the sentences were neither manifestly excessive nor wrong in principle. The application is therefore refused.

Mr. G. Forlin for Crown Prosecutor

Mr. John McNamara instructed by M/S Tsang, Wong & Cheung for applicant