HKSAR v. Au Wai Yip

CACC000166/2002

CACC166/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 166 OF 2002

(ON APPEAL FROM DCCC NO. 769 OF 2000)

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Coram: Hon Leong CJHC in Court

Date of Hearing: 23 August 2002

Date of Judgment: 23 August 2002

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J U D G M E N T

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1.The applicant was convicted after he pleaded guilty to two charges of having custody and control of counterfeit notes or coins and one charge of having custody of counterfeiting materials and implements. The total number of notes involved was 11/$100 notes, 521/$50 notes and 138/$20 notes in Hong Kong currency. For each charge, he was sentenced to 44 months imprisonment, to be served concurrently.

2.The applicant was convicted on 21 September 2000. He appealed against sentence out of time on 15 April 2002.

3.The grounds of appeal mainly were that he had assisted the police between 1993 and 1997 in solving some criminal cases.

4.The applicant had not disclosed in his mitigation that he had assisted the police when he was sentenced. Neither was this allegation of providing assistance to the police disclosed to the probation officer as the probation report makes no mention of this fact.

5.Mr Goodman for the Secretary for Justice in the Supplementary Submission informed me that the applicant had petitioned the Chief Executive twice for a reduction of his sentence based on a number of previous occasions between 1993 and 1998 when he acted as police informer and provided information to the police which led to the arrest of certain drug traffickers. On these occasions, the applicant received information money. The first petition was rejected by the Chief Executive. The second petition is still pending, no result has yet been given.

6.In imposing the total sentence of 44 months on the three charges, the judge relied on the authorities of R v Chow Tin Wan [1991] 1 HKLR 68 and R v Yip Moon Kwan [1995] 2 HKCLR 24 when the court held a sentence of 6 years is appropriate in a case where the face value of counterfeit notes is more than minimal. The judge therefore adopted 6 years as the starting point and after the discount for the plea of guilty and after taking into consideration the special circumstances of the applicant, the judge came to the sentence of 44 months imprisonment.

7.The applicant has not provided any reason to explain his delay in making his present application. No ground has been advanced in support of his application out of time.

8.The applicant has produced to this court this morning a letter from the office of Ms Emily Lau pleading on his behalf to the court for a reduction of his sentence. In this letter it is stated that the applicant had given information on a number of occasions to the police to crack down crimes but only a few cases had been solved by the police. This letter also mentions the applicant's family circumstances and pleads that the court should take these matters into consideration for a reduction of his sentence.

9.In my view, the assistance which the applicant said that he had provided to the police between 1993 and 1998 were matters predated the present offence by some two years and these matters have nothing in connection with the present offence. These cannot be taken as any indication of remorse on the part of the applicant which may merit consideration for a reduction of his sentence. I do not think the letter from Ms Emily Lau's office would assist the applicant in his appeal.

10.I see nothing excessive in the sentences imposed by the trial, neither are the sentences wrong in principle. In these circumstances, the application for leave to appeal against sentence is dismissed.

Representation:

Mr G D Goodman, Senior Government Counsel, for HKSAR/Respondent.

Applicant - in person.