The Queen v. Bert Josef Plum

CACC000149/1991

BETWEEN

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Coram: Hon Silke, V-P., Power & Macdougall, JJ. A.

Date of hearing: 20 December 1991

Date of judgment: 20 December 1991

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JUDGMENT OF THE COURT

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Macdougall, J. A.:

1. The applicant pleaded guilty before His Honour Judge Caird in the District Court to one charge of possession of a forged travel document contrary to s.42 (2) (c) of the Immigration Ordinance, Cap. 115, two charges of uttering a forged die contrary to s.74(1) of the Crimes Ordinance, Cap. 200, one charge of possession of forged dies contrary to s.76(2) of the Crimes Ordinance, and four charges of obtaining property by deception contrary to s.17(1) of the Theft Ordinance, Cap. 210.

2. He was sentenced to two years imprisonment on the forged travel document charge, to six months on each of the uttering forged dies charges and the possession of  forged dies charge, and to three months on each of the obtaining property by deception charges. The judge ordered that the sentences on the last seven charges be served concurrently with each other but consecutively to that on the forged travel document charge. The total term of imprisonment was therefore one of two years and six months.

3. He now seeks leave to appeal against the sentence of two years imprisonment on the forged travel document charge. That charge concerns his  possession on the 29th January 1991 of an Australian Passport in the name of Hans Peter Christ, but bearing the photograph of the applicant.

4. The two charges of uttering a forged die related to his possession on the 17th and 28th January 1991 of a Diners Club Credit Card in the name of  Robin Donald Hendry and a Mastercard Credit Card in the name of Ekman Magus respectively.

5. The possession of forged dies charge concerned Mastercard credit cards in the name of Christina Nyenhaven and Mrs J. Randall.

6. The obtaining of property by deception charges related to the obtaining of a television set valued at $5,988 on the 27th January 1991 from an electrical shop; the obtaining of a handbag valued at $430 from a shop in worldwide House; the obtaining of a watch valued at $697 from a shop in Tsimshatsui; and the obtaining of socks valued at $343 from another shop in Tsimshatsui, all by using the Mastercard credit card in the name of Ekman Magus.

7. The applicant's crime spree came to an end on the evening of the 28th January 1991 when he attempted to settle a drinks bill at a bar in Wanchai by presenting the credit card in the name of Ekman Magus. The bar attendant noticed some alteration marks on the card and contacted the police who came to the bar and arrested the applicant. He was then searched and was found to have with him the credit cards in the name of Christina Nyenhaven and Mrs J. Randall. The card in the name of Robin Donald Hendry had been retained earlier that evening by the manager of another bar in Wanchai after the applicant had presented it in payment of a drinks bill.  An examination of the four cards were subsequently conducted by the Government Chemist and all four were found to be forged. The original cards had been pressed flat and then re-embossed. A search of the applicant's room at the Mariners Club revealed the forged passport.

8. The applicant is a German national who resides with his Filipina wife in the Philippines. The explanation he gave to the judge as to how he came to be in possession of the passport and credit cards was that, having arrived in Hong Kong to renew his Philippines visa, he had a chance encounter with a man whom he knows by no other name than Charlie, who offered him a credit card. The applicant told him to return the following day. The man did so and brought with him the four credit cards and the passport. The applicant agreed to buy the passport at $5,000. It was a passport that belonged to Mrs J. Randall who had reported its loss to the Australian Commission in September 1989. There are various Philippines and Singapore entry stamps in the passport which bear dates subsequent to the date of Mrs Randall's report of its loss.

9. In his reasons for sentence, the judge stated that although the amounts involved in the offences in which the applicant used the credit cards were relatively small in comparison with those in other cases which had come before the court, the offences were nevertheless serious, and that the forged travel document offence was the most serious of all the charges. He further stated that he had given full credit for the applicant's plea of guilty.

10. It is now contended by Mr. Sceats, who appeared for the applicant in this Court but not in the Court below, that the sentence of two years imprisonment for the forged travel document offence was manifestly excessive and that the appropriate sentence for that type of offence where the offender was not a member of a syndicate is 18 months imprisonment. He also submitted that the applicant was suffering from a sense of grievance because he had been informed by other prisoners that other offenders had received lesser sentences than those imposed on him.

11. We observe at the very outset that, although he need not have done so, the judge specifically stated in his Reasons for Sentence  that in passing the sentences which he did, he employed the totality principle and that therefore each sentence did not reflect the gravity of the offence to which it related.

12. This Court has said time and again that where more than one sentence is passed, it is the appropriateness of the totality of the sentences with which we are concerned, not the individual sentences. Mr. Sceats referred us to R. v. Yu Wing-wut Crim. App. 346 of 1984; R. v. Wang Ju-wen [1989] 2 HKLR 26 and R. v. Lic Kwet Tjoen Crim. App. 474 of 1989. It is clear from these cases that a sentence of 18 months imprisonment after a plea of guilty for the offence of being in possession of a forged passport is not excessive.

13. Although it is true that the sentence passed by the judge in the present case for that offence was one of two years, the applicant had committed a total of eight offences, the other seven of which were completely unrelated to the forged travel document offence. Those seven offences related not only to the possession of four different forged credit cards but to the use of them in four incidents involving either the obtaining of goods or attempts to pay bar bills. Needless to say, the applicant was unable to use the other two credit cards himself because each of them bore the name of a woman. However, there can be no doubt that he had them in his possession for an illegal purpose.

14. In our view, there is no merit in this application. The overall sentence for the eight offences was neither manifestly excessive nor wrong in principle. The fact that the judge chose to deal with the individual sentences in the way he did is of no avail to the applicant. The application is therefore refused.

Representation:

Mr D. G. Saw, Sr. Crown Counsel, for Crown Prosecutor

Mr Barry Sceats, assigned by D. L. A. for Applicant