HKSAR v. Leung Wai Han

CACC000102/2002

CACC 102/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 102 OF 2002

(ON APPEAL FROM DCCC 1175 OF 2001)

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Coram: Hon Yeung JA and Hon Lugar-Mawson J in Court

Date of Hearing: 3 September 2002

Date of Judgment: 3 September 2002

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1.The Applicant, Leung Wai Han, was charged in the District Court with the following offences: the first Charge; custody or control of counterfeit notes with intent to pass or tender them as genuine, contrary to s.100(1) of the Crimes Ordinance, Cap 200, the second charge; custody or control of counterfeit notes with intent to pass or tender them as genuine, contrary to the same section of the Crimes Ordinance, the third charge; possession of an identity card relating to another person, contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap 177 and the fourth charge; possession of a dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance Cap 134.

2.The Applicant pleaded guilty to all four charges before His Hon Judge Richard Day on 4 February 2002 and on 26 February 2002, after considering the reports, the judge sentenced her to serve the following terms of imprisonment. On the first charge 18 month's imprisonment; on the second charge 18 months' imprisonment, 6 months of which are to run consecutively to the sentence in respect of the first charge; on the third charge 3 months' imprisonment, to run concurrently with the sentences for the first and second charges and on the fourth charge 10 months' imprisonment, six months of which is to run consecutively to the sentences for the first, second and third charges. This makes the Applicant's overall sentence one of 2 years and 6 months' imprisonment.

3.The Applicant now seeks leave to appeal against those sentences. She has been granted a legal aid certificate to pursue her application in respect of the sentences on the first and second charges and is there represented by Mr Aziz Hoosen of Counsel. She represents herself in pursuing her application in respect of the sentences on the third and fourth charges, having been refused legal aid in relation to that part of her application. However, she has told us this morning that she abandons that part of her application and relies on Mr Hoosen's argument in respect of the sentences on the first and second charges.

Facts

4.The facts are these: on 1 October 2001 at the junction of Shanghai Street and Nanking Street in Kowloon, a woman handed a purse to a police officer, telling him that she had found it in the street. In it were the Applicant's Hong Kong Identity Card, her Home Visit Permit and what appeared to be eleven $100 bank notes and a $20 bank note. Later on the same day, the police located the Applicant and took a record of interview from her. In it she explained that she had lost her purse while out shopping. She claimed that the bank notes were not hers.

5.On 3 October 2001, two police officers stopped the Applicant outside 27 Nin Po Street, in Kowloon. One of them searched her handbag and found in it what appeared to be twenty-two $100 notes. These were suspected to be forgeries and the Applicant was arrested and taken to Yaumatei Police Station. There was searched by a woman police officer who found a plastic bag containing white powder hidden in the left side of the Applicant's brassiere. When asked what the powder was, the Applicant replied 'ice'. A further search of the Applicant's handbag found her to be carrying a Hong Kong Identity Card relating to Leung Ka Wai, Kerrie. This lady had reported the loss of her Identity Card in early September 2001. The applicant told the police that she had found the card in the street and kept it.

6.The Government Chemist certified that the white powder found hidden in the Applicant's brassiere was 6.82 grammes of a crystalline solid containing 6.79 grammes of methamphetamine hydrochloride, the dangerous drug commonly known as 'ice'.

7.A police force Counterfeit Currency Expert confirmed that all the bank notes found, both on 1 October 2001 and 3 October 2001, were forgeries. The total purported face value of the forged notes in both the first and second charges was $3,320.

8.The Applicant has 5 previous convictions; two of these are for offences of dishonesty.

The Judge's reasons

9.In his comprehensive reasons for sentence, the judge said that in passing sentence, he took into account the purported face value of the notes in both the possession charges; the nature of the offences and the maximum sentence for each offence. He adopted a starting point of 21/2 years' imprisonment for each of the counterfeit bank note possession charges and gave the Applicant a discount of 40% on each, reducing the sentence for each to 18 months' imprisonment, to reflect her guilty pleas and her assistance to the police, which had led to the arrest and charging of another defendant. In his sentencing remarks he said this about this aspect of the case:

"The District Court case (counsel) referred to does, however, have a greater significance in this case because the information leading to the arrest and charging of the defendant in that case came from you, Ms Leung. This has been confirmed by a letter from the police given to me today. I am assured that the Sivan procedure is not required and that there is no need for secrecy in this case. The information you have given clearly warrants a reduction in your sentence but not, I fear, as much as (counsel) has urged. She has referred me to cases where 50 per cent discount has been allowed but, equally, similar examples could be turned up where more discount has been allowed and less discount. Each case depends on its own facts and in particular the sort of information given, the sort of offence involved, the consequences to the informer and to the defendant in the other case. Here your information, Madam Leung, has not resulted in a major drug dealer or gang of robbers being caught, as in two of (counsel's) authorities, but it has led directly to the arrest, charging and plea of another on offences similar to you own.

The provision of this sort of information from the defence is to be encouraged and rewarded with appropriated discounts. Your guilty plea warrants a discount of one third from the starting point. I propose to increase the overall discount to a total of 40 per cent to reflect the assistance you have given in the other case."

10.The Judge then applied the totality principle to arrive at the Applicant's overall period of imprisonment in respect of all four charges she faced.

Grounds of Appeal

11.In respect of the sentences on the first and second charges, Mr Hoosen says that the Judge adopted too high a starting point and failed to give sufficient regard to the totality principle, and that in all the circumstances, the aggregate sentence of 2 years for those two offences was manifestly excessive.

Applicant's argument

12.It is Mr Hoosen's argument that there was no evidence of any aggravating feature in the case. The Applicant gave information which led to the arrest and conviction of another person on a similar charge, where the face value of the counterfeit notes was $8,000. That defendant was sentenced by another judge to 18 months imprisonment after plea, which suggests that the judge in that case took a starting point sentence of 2 years & 3 months. Mr Hoosen accepts that the judge in the present case was not bound by the sentence of a fellow District Court Judge, however, he says it is desirable to achieve consistency, wherever possible, and here it would seem that the Applicant, who possessed a lower face value of forged money, was given a higher sentence. The Judge, Mr Hoosen says appears to have adopted the same starting point as that taken in HKSAR v Muhammad Munsha CACC 412 of 1999 (unreported) which involved forty-two $1,000 forged bank notes. In the absence of factors distinguishing the present case from the others, so as to make a higher sentence appropriate, the 21/2 years starting point taken by the Judge in this case was, Mr Hoosen says, excessive.

13.The two forgery possession charges occurred on different days and Mr Hooosen does not suggest that a partially consecutive sentence for the second charge is erroneous. However, the two days were close in time and Mr Hoosen submits that it would have been more appropriate for the Judge to order that a shorter period of the sentence on the 2nd charge be served consecutively. This morning he suggests a period of 3 months. This, he says, would have done justice to the case as a whole and would have better accorded with the totality principle. As it is, the Applicant has been sentenced to a total of 2 months on the two charges, which, bearing in mind the discount of 40%, effectively means that her overall sentence was discounted from a starting point of 40 months.

Discussion

14.There are no tariff sentencing guidelines for the offence of custody or control of counterfeit bank notes with intent to pass or tender them as genuine. In sentencing the Applicant, the Judge, quite properly, took into account the intention of the legislature as indicated in the maximum penalty for this offence provided for in the Crimes Ordinance, which is 14 years' imprisonment. It is true that the purported face value of all the forged bank notes was relatively low, but the Judge appreciated this and we agree with his comment in his sentencing remarks, where he said:

"I accept immediately that the face value of the notes in both these charges is not great, but as against that is the fact the use of these notes is an ongoing evil."

15.In arriving at the discount of 40%, the Judge considered the nature and extent of the Applicant's assistance to the police. His reasons for arriving at that figure, which we have already quoted in full, are cogent and in accordance with principle. Undoubtedly, the information the Applicant provided to the police was useful and led to another's arrest, and conviction on their own plea; but as the Judge appreciated it did not justify her receiving a discount as high as 50% on her sentences.

16.Although the time between their commission was short - only 2 days - the first and second charges are two separate and distinct offences, ones occurring at different times and places. It is well settled that, subject to the question of totality, consecutive sentences should be considered and imposed in these circumstances. It is as equally well settled that where there is more than one offence of a similar nature committed at different times, it is right for the court to impose a higher sentence than if there had only been one offence. See R v Tong Hoi Fung [1998] HKLR 610.

17.We are satisfied that the Judge considered and recognised the importance of the totality principle when sentencing for the two counterfeit bank note possession charges. He made an adjustment to the sentences so as to ensure that they were commensurate with the seriousness of the offences and the Applicant's criminality.

18.As to the disparity argument; in R v So Hung Lee & Anor [1986] HKLR 1049 it was held that when different sentences are passed on different accused for the same offences by different judges on different occasions, then the only consideration for an appellate court must be whether the sentence passed on the appellant was appropriate. In this case there is not even the common link of the Applicant and the person whom she told the police about facing charges for the same offence. The fact that another judge took a different view of another person's offence in an unrelated charge is totally immaterial.

Decision

19.We are satisfied that the Judge committed no error of principle in sentencing the Applicant for the first and second charges. We are also satisfied that the overall sentence of two years imprisonment for these two offences is not manifestly excessive.

20.For the sake of completeness; we are satisfied that the Judge was correct to sentence the Applicant to 3 months' imprisonment for the third charge of possession of another's identity card, and that he was as equally correct in ordering that the Applicant serve that sentence concurrently with the sentences on the first two charges. The sentence of 10 month' imprisonment for her illegal possession of the just-less-than 7 grammes of 'ice' is well in accordance with the range of sentences for simple possession of this substance. And the Judge's decision that the Applicant serve 6 months of her sentence for that offence consecutively to her other sentences is also in accordance with principle.

21.The Applicant's application for leave to appeal against the sentence in respect of the first and second charges on the District Court charge sheet is dismissed. As is her appeal against the sentences on the third and fourth charges which she abandoned before this morning.

Representation:

Ms Chan Fung-shan, Denise, SADPP (Ag), for the HKSAR

Mr A A Hoosen, assigned by the Director of Legal Aid, for the Applicant