The Queen v. Chan Tien-yau and Others

CAAR000002/1983

IN THE COURT OF APPEAL

BETWEEN

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Coram: Roberts, C. J., Yang & Barker, JJ.A.

Date: 17th March 1983

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JUDGMENT

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Barker, J. A.:

1. This is a reference by the Attorney General in respect of a sentence of eight years' imprisonment which was passed on each of these three respondents by Jones, J. on the 7th February 1983.

2. The three respondents were charged with another man on an offence of conspiracy to utter forged documents contrary to Common Law, in that they, on divers days between the 5th May of 1982 and the 1st June 1982 conspired together and with other people to utter forged Hong Kong one thousand dollar banknotes, knowing them to be forged and with intent to defraud.

3. It was a bad case involving as it did eight hundred such forged one thousand dollar notes and each of these three respondents richly deserved a sentence of eight years' imprisonment on that count. It is, however, clear, and we accept Mr. Duncan's submission to us, that the sentence of eight years' imprisonment was one which the learned judge had no power to pass. As I have said a moment ago, a conspiracy to utter forged documents is an offence contrary to the Common Law and whereas in England the distinction between a misdemeanor and a felony has been abolished, Hong Kong law still recognises the distinction.

4. Section 90 of the Interpretation and General Clauses Ordinance Cap. 1 reads as follows:

"Where an offence is a misdemeanor by any law and no punishment is provided therefor, that offence shall be punishable by imprisonment for 7 years and a fine of $50,000."

5. There are many kinds of conspiracies on the books in Hong Kong for which punishment is provided. But no punishment is provided for the Common Law conspiracy of conspiracy to utter forged documents. It follows that the judge had no power to pass a term of imprisonment of eight years and we therefore set aside that sentence and we substitute, in respect of each of the men on this count, a sentence of seven years' imprisonment. This was the only count upon which the second and third respondents were indicted.

6. The first respondent was also charged with possession of forged banknotes, found guilty of that and was sentenced on that charge to a term of eight years' imprisonment. He has told the Court that he has appealed both against his conviction and his sentence in respect of that count. But those appeals are not before this Court and we say nothing about them.

Representation:

Respondents in person.

P.N. Duncan, Crown Counsel, for Applicant.