Law Ka-cheuk and Another v. The Queen

CACC001019/1982

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 20th January 1983

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JUDGMENT

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Silke, J.A.:

1. We have for consideration two renewed applications for leave to appeal against sentence.

2. The lst applicant, LAW Ka Cheuk, pleaded guilty to two counts: and this plea was after a voir dire had been held. The counts were those of conspiracy and of uttering a forged document. He received concurrent sentences of 5 years on each of the counts.

3. The 2nd applicant, KWOK Wing Kit, pleaded guilty to four counts in the indictment - conspiracy, forgery, possession of implements used in forgery and possession of forged documents. He was sentenced to periods of 6 years on the first three counts and 1 year on the last count - all concurrent - giving a totality of 6 years.

4. Briefly, the facts were that the 1st applicant (Law) - who may be described as the "broker" - had been approached by an undercover detective constable who asked him to get two identity cards - the identity cards being ostensibly for two of his colleagues. He produced photographic negatives of these two and false details of them for the purposes of producing the identity cards. He also gave Dl a marked $500 note.

5. A couple of days after this meeting, the 1st applicant and the policeman met again. The policeman received back two identity cards relating to his two colleagues and with the false particulars entered upon them.

6. On that same day, the 19th February, the premises occupied by the 2nd applicant (Kwok) were raided. On his person was found the marked note which had been given to the 1st applicant by the policeman. In his premises was seized equipment capable of being used in the forgery of Hong Kong Identity Cards. It was very comprehensive equipment which was capable of being used for this purpose and there was scientific evidence that the two identity cards, which the policeman had received from the 1st applicant, had been made with that equipment.

7. It is Mr. Mackay's submission, and he appears for both applicants at the hearing of this application, that this was really a small scale affair and that the 2nd applicant, who was the manufacturer, had come into the business by way of an attempt to assist his relatives. He had clearly then extended that into a possible money-making machine.

8. The lst applicant had said in his grounds that this was the first occasion on which he acted as a broker in this type of operation.

9. Mr. Mackay referred us to WONG Kwai-fan ⁽¹⁾ where another Division of this Court reduced a sentence of 6 years, imposed for an offence of conspiracy to forge documents and to utter forged documents, to a sentence of 4 years' imprisonment.

10. It is unclear from the report of that case exactly what part the applicant therein played, though it appears that he received merely $200 a night for his part in that which was done. His part does not appear to have been substantial.

11. My brothers there felt that the judge had over-emphasized the applicant's capacity as a"chief conspirator and beneficiary". That seems to have been the reason for the reduction in the term of imprisonment. Here, the trial judge, in passing sentence, made reference to the fact that this was not a small operation. We are not inclined to think that that was a fully justified remark. It is not, on the face of it, the biggest of operations. It is certainly not as big as the $200,000 one in WONG Kwai-fan⁽¹⁾.

12. We would agree with the trial judge that it is a serious matter and, as he said, the real evil is that it tends to nullify government policy regarding illegal immigrants. An identity card is very necessary for any illegal immigrant in order to get a job and therefore it is a lucrative matter for people to provide them with false cards.

13. This is not the worst case of its kind. We think that the sentences should be reduced to the extent that the maker, the 2nd applicant's, sentences of 6 years should be reduced to a totality of 5 and the broker, the lst applicant's, sentences be reduced to a totality of 4 years' imprisonment.

14. We  would therefore grant leave to appeal, treat the hearing of the application as the hearing of the appeal and allow the appeal to the extent indicated.

15. Before leaving this application, it is necessary to make some reference to the very confusing state of the indictment. It would appear that at committal there had been but one charge. Then it was, and quite properly of course, decided to add to the counts on the indictment and this was done.

16. When the matter actually came on for trial it was decided not to proceed with certain of the counts. As a result, the seven-count indictment was altered by renumbering the counts and reduced to a five-count indictment.

17. There was, then, half way through the trial - presumably for of tidiness - and at the time when a third defendant at trial had been acquitted and had disappeared from the trial itself - added a fresh indictment consisting of three counts. It was at this time that the first applicant pleaded guilty. Whether he pleaded to the counts contained the original indictment or to those contained the "tidy up" one is unclear. But Mr. Mackay, quite, rightly, takes no point, on this.

18. This left the papers before us in some confusion. The original alterations necessitated the trial judge's telling the jury not to "worry even if it was rather confusing" and that another indictment would be placed before the court.

19. It would be much more preferable if these matters could be sorted out in such a way as to leave it clear to everyone, including the Court of Appeal, exactly what the counts were before the court and exactly who pleaded, when and to what.

(1)    Criminal Appeal No. 123 of 1982

Representation:

G. Mackay, Esq., instructed by Messrs. Hampton, Winter & Glynn for both applicants.

F.C. Whitehouse, Esq., for Crown/Respondent.