HKSAR v. Sher Jamal Hyder

CACC000215/2002

CACC 215/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 215 OF 2002

(ON APPEAL FROM DCCC NO. 68 OF 2002)

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Coram: Hon Cheung and Yeung JJA in Court

Date of Hearing: 17 December 2002

Date of Judgment: 17 December 2002

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Backgrounds

1.The applicant appeared before Judge Wright in the District Court on an indictment originally consisting of 8 charges. He pleaded guilty to 3 charges of using false instruments and 1 charge of possessing a false instrument. The other charges were not proceeded with.

2.In respect of each of the 3 charges of using false instruments, the applicant was sentenced to 24 months imprisonment to run concurrently. In respect of the charge of possessing a false instrument, he was sentenced to 32 months imprisonment with 12 months to be served consecutively. The applicant had to serve a total of 36 months imprisonment.

3.The applicant seeks leave to appeal against sentence.

The Facts

4.On three occasions on 25 October 2001, the applicant approached 3 separated branches of the Thomas Cook Hung Kai Airport Currency Exchange Limited at the Hong Kong International Airport to cash American Express travellers cheques.

5.On each of the first two occasions, the applicant produced a Portuguese passport X752937 in the name of Singh Keshabe Jagit and successfully exchanged 3 travellers cheques of 200 Euro each to about HK$4,000.

6.On the third occasion, the 3 travellers cheques produced by the applicant were suspected to be forged. The applicant was asked to produce his passport but he didn't. He just asked for the exchange rate. The police was alerted and the applicant was arrested.

7.The aforesaid occasions form the subject matters of the 3 charges of using false instruments.

8.The applicant was subsequently found to be in possession of another 27 American Express travellers cheques of 200 Euro each and 2 customer's copies of "purchase record" of American Express travellers cheques. They form the subject matters of the charge of possessing a false instrument. The travellers cheques and "purchase record" were subsequently proved to be forged.

The Judge's Approach

9.The Judge relied heavily on HKSAR v Rohrer [2001] 3 HKC 371, a similar case involving a Swiss visitor who started to negotiate 50 forged travellers cheques shortly after arriving in Hong Kong. He cashed 33 cheques and obtained about $25,000 at 3 foreign exchange outlets. He left the fourth outlet when he was asked for receipts for the purchase of the 13 cheques which he tried to cash there. He was caught at the fifth outlet when he tried to cash another 4 cheques. Another 11 forged travellers cheques were found in his possession. He also possessed a forged passport in the name of the person to whom the travellers cheques were issued.

10.He pleaded guilty to 2 charges of using forged travel documents and 8 charges relating to the 61 forged travellers cheques.

11.The Court of Appeal in Rohrer (supra) considered a total starting point of 4 1/4 years appropriate.

12.The Judge pointed out that in Rohrer, the accused "provided substantial information as to how he came into possession of the travellers cheques and the circumstances leading up to his negotiating them in Hong Kong" while the applicant did not provide any such information to the police or to the court. The Judge did not indicate if such matter had any bearing on sentence.

Ground of Appeal

13.Mr. Ross, on behalf of the applicant only raises one matter in this application. It is suggested that when the Judge followed Rohrer and adopted a starting point of 4 1/2 years imprisonment, he had ignored the fact that in Rohrer, the accused was also involved with two charges of using forged traveling documents. Mr. Ross suggests that as the applicant had not been charged with any offence relating to forged traveling documents, his culpability is less. In the circumstances, the starting point of 4 1/2 years imprisonment is manifestly excessive.

14.With or without the charges of using forged traveling documents, if an accused used a forged passport or a passport belonging to another so as not to reveal his true identity when negotiating the forged travellers cheques, such use was part and parcel of the fraudulent scheme. The judge would be entitled to look at the entire circumstances of the case including the use of the passport in deciding on a proper starting point.

15.The facts of the present case are strikingly similar to that in Rohrer (supra). But there was no suggestion that the passport used by the applicant was not his or in anyway forged. Mr. Reading SC for the respondent quite fairly concedes that the facts must be construed in a way most favourable to the applicant.

16.When the court adopted a global starting point of 4 1/2 years imprisonment in Rohrer (supra), the court must have taken into consideration the use of the forged passport.

17.In the absence of such aggravating factor, it would not be justified in adopting the same starting point for the applicant.

18.We are persuaded that a fairer approach would be to adopt a starting point of 4 years imprisonment and after the 1/3 discount for the guilty plea, the proper overall sentence should be 2 years 8 months imprisonment.

19.Despite the seriousness of the offences in question, the total sentence of 3 years imprisonment imposed on the applicant is in the circumstances manifestly excessive and should be reduced.

20.The application for leave to appeal against sentence is allowed. We treat the application as the appeal. The sentences on individual charges remain but to run concurrently, making a total sentence of 32 months imprisonment.

21.The appeal is allowed to the extent indicated.

Representation:

Mr John Reading SADPP and Ms Jane Cheung GC of the Department of Justice, for the Respondent.

Mr Phillip Ross assigned by Director of Legal Aid for the Applicant.