The Queen v. A1- D1- Leung Wing-kay and Another

CACC000050/1985

IN THE COURT OF APPEAL

Coram: Hon. C.J., McMullin, V.-P., & Silke, J.A.

Date of hearing: 12th March, 1985.

Date of judgment: 12th March, 1985.

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JUDGMENT

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1. These two applicants pleaded guilty in the District Court to two charges under the Crimes Ordinance. The first applicant pleaded guilty to uttering a forged identity card, and to possession of the sam forged identity card. The second applicant pleaded guilty to a charge of possession of the same identity card.

2. The facts are briefly as follows. The police had some information concerning forged identity cards and Constable 205 on the 12th of October met with the first defendant and some other men in the Kam Tao Restaurant in Tokwawan. The constable was posing as a prospective buyer of a forged identity card. After conversation with the first defendant it was agreed that a card could be supplied and a price was fixed at $6,500. The card was to be not for the constable himself but for a woman and a photograph, which was in fact the photograph of a woman police constable, was handed over by the undercover constable for the purpose of procuring the forged identity card. A sum of $1,000 in marked money was paid over to the first applicant at the same time. Some time went past and on the 22nd of October over the telephone a meeting with the first applicant was arranged for the following day.

3. On that day the constable went to the Kam Tao Restaurant in the evening and found the first applicant there with another man who, as it transpired, was the second applicant. They were joined by another person later. This man figured originally in the proceedings as the third defendant but at the trial no evidence was offered against him.

4. On this occasion the first applicant produced the forged card and instructed the second applicant to take the police constable to a toilet to show him the card. He told him to do so, so as not to be detected. This was done and the police constable inspected the card within the toilet and returned therefrom with the second applicant. The card was handed back by the second applicant to the first applicant and thereafter given to the undercover constable, DPC 205. The balance of the payment, $5,500 in marked notes was handed over to the first applicant who counted it and gave some to the second. A police party had been stationed in the immediate vicinity within the restaurant and upon the money being handed over in this way, they declared themselves and the arrests followed.

5. The first defendant received a sentence of two years' imprisonment on the uttering charge and a sentence of twelve months on the possession charge, the sentences to run concurrently. The second applicant received a sentence of six months upon the possession charge.

6. Mr. Plowman who appears before us this morning on behalf of both applicants stresses a feature which was also stressed before the Deputy Judge. It appears to be accepted that there was in the background of this affair some element of entrapment. This arose from the fact that the person whom the first applicant approached, a man called Kwong, was in fact a police informer who put the police upon the applicant's trail. The first applicant had originally been approached by another man called Wong who, knowing that the first applicant was in financial difficulties, had suggested to him the possibility of selling forged identity cards as a lucrative line of business. There is no doubt that the first applicant went along with this suggestion and his appearance in the restaurant upon the day of his arrest was the result of his having done so.

7. The first applicant made it clear in the court below that he felt a sense of having been unfairly treated inasmuch as he believed that Wong and Kwong had been in conspiracy against him to procure his arrest in this way.

8. That factor was taken into account by the District Judge in imposing his sentences. He referred to several cases including the case of Sang ⁽¹⁾ in which it was established that while the element of entrapment cannot be regarded ad an answer to the charge, it is something which nevertheless may be taken into account in mitigation of sentence. The District Judge said:

"Accepting that there is room for such suspicion, I ask myself to what extent then should such suspicion be taken as mitigation of sentence? I have decided that it would be proper to recognize some mitigation in what has been said in this regard on behalf of 1st defendant.

Having considered this aspect of the matter, the circumstances of the offence, the defendant's clear record together with his pleas of guilty, and other matters urged on his behalf, I am satisfied that a reduction of sentence to the extent of 12 months is warranted and I sentence the lst defendant to 2 years imprisonment on charge 1 and to 12 months imprisonment on charge 2 to be served concurrently to charge 1."

9. He then considered the case of the second applicant. Having earlier stressed the fact that possession of a forged identity card is a serious matter, he said:

"However, I am satisfied he played a far lesser role in this matter than his co-defendant and the appropriate sentence, taking into account also his plea of guilty and the other matters urged on his behalf, is 6 months imprisonment on charge 2."

10. Before us this morning, Mr. Plowman in respect of the first applicant urges the view that the judge in choosing a starting point of three years has chosen a figure which, in respect of simple possession of such a forged identity card, is too high. He points out that it was never suggested that the applicant was himself the forger but was obviously a middle man; secondly, that it is a case of uttering one card only and so cannot be regarded even as a small scale operation being only a single incident into which, out of greed, on one occasion, the applicant was led and to some extent entrapped. He stresses also that the applicant had no previous convictions.

11. We have been referred to a number of cases and in particular to The Queen v. CHAN Ming⁽²⁾ , a case involving a single charge of possession of a forged identity card, in which the Chief Justice giving judgment said:

"Early in 1982, as I have said, the Court of Appeal approved sentences of 15 months' imprisonment as appropriate for this offence. That is the sentence which was imposed in this case and there are no special circumstances which would justify the magistrate in departing from that normal sentence."

Later he continued, in dealing with counsel's submission:

"I should remind him that, until the Court of Appeal sees fit to change the guidance which it issued in Criminal Appeal 934/81, the proper sentence for this offence is one of immediate imprisonment for about 15 months."

That relates, of course, to a single offence of possession upon a plea of guilty.

12. Counsel brought our attention also to certain other cases more recently reported in the newspapers. I shall not refer to them as they do not in any way further illuminate the guideline suggested in the judgment to which I have referred in CHAN Ming ⁽²⁾.

13. It is true of course, that in the present case the sentence on the first count was only two years i.e. only 9 months above the going rate for simple possession. However, we think that in all the circumstances that was too high a starting point. The two elements which the District Judge took into account were the plea of guilty and the entrapment and both were proper elements to be taken into consideration. Mr. Plowman's point is that the judge should have begun his consideration of sentence at a figure of two years. He suggested that this should then have been reduced by the extent which the judge evidently thought appropriate in view of those factors. That would bring it down to one year.

14. Having regard to what was said in CHAN Ming ⁽²⁾and having regard to the circumstances of the case as they have been described, we think that the proper point which the District Judge should have started in this case was two years. We cannot agree, however, that it should come down as far as counsel has suggested it. We think that, making allowance for the elements to which I have referred, the proper sentence should have been one of 18 months! We therefore treat the hearing of the application as the hearing of the appeal and set aside the sentence of two years on the first charge substituting therefor a sentence of 18 months. As to the second charge, possession of a forged document, the sentence of 12 months concurrently will remain.

15. So far as the case of the second applicant is concerned, it was not disputed before this court that the second defendant may have found himself in the position in which he was discovered and arrested not having initially expected to be involved in any such affair. His story, when he was arrested, was that he had gone to the restaurant on that occasion to borrow money to assist a friend in his defence in some legal case. However, in pleading guilty, he admitted that before the identity card was handed to him by the first applicant it was made clear to him by the first defendant that it was a forged card and that he thereafter co-operated by taking the undercover police officer to the toilet for the purpose of having that card inspected.

16. He has one previous conviction. In this respect his case was unlike that of the other applicant. As Mr. Leung, who appears for the Crown and opposes both these applications, has pointed out, taking the figure of 15 months as being the norm, for a single offence on a plea of guilty, the sentence in his case is as it stands almost two thirds below that figure.

17. We think that no good cause has been shown for making any alteration to the sentence of the second applicant and his application must therefore be refused.

(1)    (1979) 2 All E.R. 1222

(2)    Cr. App. 353 of 1983

Representation:

G. Plowman (O'Cock & Day) for both Al & A2.

S. Leung for Respondent/Crown.