Siu Hei Nam and Others v. The Queen

CACC000265/1978

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 19 March 1979

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JUDGMENT

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1. The first appellant appealed against his conviction for uttering a forged document and for a second charge of being in possession of a forged banknote. He also appealed against his concurrent sentences of six years on the first charge and three years on the second charge.

2. The second appellant was found guilty of uttering a forged document and was given six years' imprisonment. He appealed against that sentence.

3. The third appellant pleaded guilty to the following offences: one charge of forgery, two charges of possession of implements for forgery, one charge of possession of forged banknotes and one charge of possession of paper for forgery. He was sentenced to nine years' imprisonment on the first charge and to five years on each of the other charges; all sentences to run concurrently. He appealed against his sentences. The third appellant was the ringleader in this case. He was in possession of a press and no less than US$650,000 worth of forged banknotes.

4. The second appellant was the link between the first appellant and the third appellant. The third appellant handed seven US$100 to a friend of his in payment of a debt. This man bought some goods with one of the US$100 notes which was found to be forged.

5. The offences committed by the third appellant are of a very serious nature. It is true that he pleaded guilty and that he had a clear record, but the fact that the money forged was foreign money and the fact of the enormous quantity of notes involved and the efficiency of the equipment that he possessed must be taken into consideration. We do not think that the sentences passed for these offences were manifestly excessive and the appeal of the third appellant is dismissed.

6. When dealing with the appeals against sentence of the first and second appellants the learned trial judge commented upon the conduct of their defences. There was evidence that each appellant had made a statement of a confessional nature to the police. The defence of each appellant was that the statement was made as a result of extensive threats and assaults by the police. This defence was presented in great detail and at great length. The comments of the judge were very pointed and he said that a totally unjustifiable attack had been made by the two appellants on the police and it is obvious from his judgment that this was one of the reasons why he imposed a sentence of six years' imprisonment on each of the appellants. In the case of Lau Ping Kwai v. The Queen⁽¹⁾ the Chief Justice had this to say:-

"Although regret and consciousness of error, particularly when coupled with a sincere intent not to offend again, may well be taken into account in determining a sentence, an accused is not to be punished for the manner in which he conducts his defence ...."

7. We agree with this passage, and we do not think it proper to take into consideration the conduct of the defence in court when passing sentence.

8. There is another matter which has caused us concern. The first and second appellants are first offenders. The judge stated that the sentence of six years' imprisonment was a deterrent sentence. It was said in R. v. Garthwaite⁽²⁾:-

"It is not desirable that the first sentence of imprisonment passed on an offender should be a deterrent sentence in the sense of a general deterrent to deter other persons from behaving as this appellant did."

9. We agree with this and we think that the judge fell into error here and did pass exactly such a sentence. In the event, for the reasons expressed above, we think that the appeals of the first and second appellants must be allowed to the extent that the six years' period of imprisonment passed on them for uttering a forged document be reduced to a period of three years. The appeal of the first appellant against the sentence of three years' imprisonment passed on the possession charge is dismissed.

Representation:

Stevenson (D.L.A.) for 1st and 3rd appellants

Sedgwick & Eddis (K.Y. Woo & Co.) for 2nd appellant

Adams for crown/respondent

(1) (1962) H.K.L.R. 584.

(2) Crim. App. 566 of 1977.