HKSAR v. Zulfiqar Ahmad

CACC000385/1997

IN THE COURT OF APPEAL

1997, No. 385
(Criminal)

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Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A.

Date of hearing: 14 January 1998

Date of delivery of judgment: 14 January 1998

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to 2 counts of handling stolen travel cheques contrary to section 24 of Theft Ordinance, 2 counts of using false instruments, that is counterfeit traveller's cheques, and 1 count of being in possession of a forged travel document. He was sentenced to a total of 40 months' imprisonment on these counts and now seeks leave to appeal against the sentences which were imposed.

2. On 4 January 1997, the Applicant checked in at the Hong Kong Hotel. When doing so, he produced the forged passport which was a subject matter of the 9th count to verify his identity. He was required to pay a deposit for the room he would use. He produced four American Express traveller's cheques of US$100 denomination to effect payment. It subsequently transpired that these traveller's cheques had been stolen from the rightful owner.

3. The next morning the Applicant cashed ten Citicorp traveller's cheques of US$100 denomination. These traveller's cheques were forgeries.

4. Later in the day, the Applicant checked in at the Furama Hotel and resorted to a similar stratagem with them and likewise paid for his accommodation with stolen AMEX traveller's cheques. The next morning he cashed US$800 forged Citicorp traveller's cheques.

5. The approach adopted by H. H. Judge McMahon was to sentence the Applicant to 12 months' imprisonment on the handling charges and reduce this to 8 months for the pleas.

6. For the use of the false instruments, the judge adopted 24 months as his starting point on count 6 and 36 months on count 3 as a larger amount was involved on this count. In respect of both sentences, he ordered that the Applicant should receive the usual 1/3 discount.

7. For the possession of the forged passport the judge adopted a starting point of 2 years' imprisonment and reduced it to 16 months.

8. The judge then took cognisance of the totality principle and ordered that counts 1, 3, 6 and 7 should be served concurrently, but that these sentences should be served consecutively to the passport charge thus arriving at the 40 months total sentence.

9. The Applicant refers to his difficult family circumstances. The judge was however mindful of these and adopted a sympathetic approach to the Applicant in as much as he could. Before us the Applicant referred to two other cases where shorter sentences had been imposed in respect of the misuse of passports. He submitted that the sentence imposed on the 9th count was therefore excessive. The answer to this is the facts of every case are different and very little assistance can be derived for a consideration of other individual cases.

10. There is however one matter which does merit some further consideration.

11. No reference is made in the Reasons for Sentence to the fact that the Applicant was at the time when he was sentenced serving a term of 6 months' imprisonment in respect of his earlier conviction for being in breach of a deportation order which had been imposed upon him.

12. However having regard to the fact that it is the normal practice to order consecutive sentences where a defendant has been convicted of remaining in Hong Kong without the permission of the Director of Immigration, it appears likely that the judge would not have ordered the present sentences to be served concurrently. Indeed, had he done so he would have been in error.

13. Having regard to all of the circumstances, we do not consider that the sentences imposed were either wrong in principle or manifestly excessive. This application is dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. & Mr. Robert K.Y. Lee (D.P.P.) for Respondent

Zulfiqar Ahmad, Applicant in person