The Queen v. Koo Pui and Others

CACC000469A/1985

BETWEEN

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Coram: Li, V.-P., Silke, J.A. & Penlington, J.

Date of Hearing: 14 March 1986

Date of Judgment: 14 March 1986

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JUDGMENT

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Li, V.-P.: (sentence: Koo Pui, Chiu Kwok Ching)

1. The 1st and 2nd applicants were two of three persons convicted on their own plea of uttering forged documents. They were each awarded a sentence of 6 years imprisonment. The offence alleged against them was that on the 17th of April 1985 at the Furama Hotel they uttered 12,000 US$50 bank notes knowing the same to be forged with intent to defraud.

2. These two applicants were caught delivering one suit case full of forged bank notes to a purported purchaser who was in fact a police officer. Upon their arrest each of them made a full and frank confession of their participation in this particular offence.

3. The 1st applicant disclosed that he was in fact an intermediary of a potential vendor who had forged US bank notes to sell. He stumbled into a police informer and introduced that informer to this vendor. Meetings were arranged in the presence of the 2nd applicant and one Mr. CHAN Kam-hung. In the meanwhile Inspector Santos was informed and he posed himself as an interested purchaser. The offence was thus discovered.

4. The 1st applicant informed the Court in his plea of mitigation through counsel that he was a broker by occupation and because of his interest in brokerage he succumbed to temptation and found a buyer for the notes.

5. The 2nd applicant gave full co-operation to the police and admitted everything as soon as he was caught. In passing sentence the judge said (at page 29) that he had considered the plea in mitigation by both of these two applicants and treated their peas as an indication of remorse. They have both got clear records. However, in the course of his plea in mitigation counsel for the 1st applicant cited three recent cases reported in the newspapers of sentences passes in similar cases with a view to urge the judge to be lenient. The judge took these three recent cases as indicating that this type of offence was creeping up and becoming prevalent. Therefore, he saw fit to impose deterrent sentences.

6. The grounds in support of their applications for appeal against sentence were that the sentences of 6 years on each of the applicants was manifestly excessive. Counsel for the 1st applicant maintained that the trial judge was wrong in holding that there was a recent increase in offence of this nature and that a deterrent sentence was called for.

7. Counsel for the 2nd applicant adopted that submission and further contended that the judge failed, to give sufficient consideration first, to the assistance the 2nd applicant had given to the police in making a full and frank admission in his cautioned statement; second his plea of guilty; third the role he played in the offence; and finally his previous good character and his family circumstances.

8. The 2nd applicant's role as disclosed in his cautioned statement was that he was merely working for Mr. CHAN Kam-hung. He was asked to go, to the handing over, to guard against any person who might see fit to snatch either the forged US bank notes or the money that was to be used to pay for them.

9. Admittedly both applicants were full participants of this offence. Both counsel brought to our attention a list of similar offence sentences supplied by the Grown. Having persued this, it appears that there is no standardised form of sentence. They ranged from three up to six or seven years, be it a plea of guilty or conviction after trial.

10. Learned counsel for the Crown very fairly supplied us with another list of similar offence sentences compiled by the Commercial Crimes Bureau showing equally varied sentences. He invited this Court, if considered proper, to issue guidelines.

11. We feel that every case depends on its own facts  and we are not persuaded, given the variety of offence, that it is appropriate at this juncture to lay down a tariff.

12. We feel that in the present instance, the learned trial judge has not given sufficient consideration to the clear records of both applicants, nor to their pleas of guilty. It would appear from both the lists supplied to us that sentences of six years here were manifestly excessive. For these reasons we grant leave to the 1st and 2nd applicants to appeal against sentence, treat the application as the appeal proper and allow the appeal. The sentences of six years on these two applicants will each be reduced to one of four years.

13. Perhaps I should add that although a guideline is not called for, we have to pay some attention to at least two of the cases. We note the case of WONG Chi-kwok^(l) which was a case of possession of instruments for forgery. It was a very bad case. A plea of not guilty was entered and the sentence of eight years was imposed after full trial. On appeal, another Division of this Court reduced it to one of six years imprisonment.

14. In the case of NGAN Chun-yee,⁽²⁾ a similar case of possession of forged bank notes, another Division of this Court allowing the appeal against sentence, the learned Chief Justice presiding, he said that:

"We should like to say that although we felt it proper to reduce these sentences because of the previously prevailing tariff for them, we consider that judges should consider increasing the tariff to the sort of level which was applied by the trial judge in this case, so that in future we would not be inclined to interfere with a sentence of 6 years' imprisonment in a case of this nature, following a plea of not guilty and a conviction.''

Thus, six years would be a proper sentence in the case of conviction after a full trial.

15. Having regard to these cases we are of the opinion that in the case of uttering forged bank notes, particularly one of the magnitude of this present case, a participant would not be justified in saying that a sentence of six to seven years was manifestly excessive on conviction after trial. On a plea of guilty, he could expect a discount depending on the circumstances. We leave it to the trial judge's discretion as to how to deal with a principal offender of such offences. The sentences upon such category of offenders should be higher.

16. That being the case having regard to the circumstances here we feel that the sentence of four years on each of  these two applicants is appropriate.

Conviction: Ho Wai Kong

17. The 3rd applicant was convicted of the same offence as the others.

18. The prosecution evidence was that one Inspector Santos posed as a potential American Singaporean buyer of those notes. On the day of  the transaction the first two applicants were caught in the act of delivering the forged  notes to Inspector Santos. Prior to this, however, this applicant was seen together with one CHAN Kam-hung (who was alleged to be interested in the sale of these forged bank notes) in the toilet area in the lobby floor of the Furama Hotel. While they were together the 2nd applicant went over to talk to both of them for about 4 to 5 minutes and then returned to the general lobby area to join a party consisting of Santos and the 1st applicant. Having spoken to them the 2nd applicant went back to have a further word with CHAN Kam-hung and this applicant. Prior to these conversation taking place the applicant was seen to have been watching the table where the 1st and the 2nd applicants and Santos were seated.

19. When the four of them eventually returned to the Furama Hotel lobby the 1st and the 2nd applicants went upstairs. They were arrested there. This applicant was arrested together with CHAN Kam-hung as they left Furama Hotel. He was taken back to the Commercial Crimes Bureau where he made a cautioned statement.

20. In the statement he first said that he was there to talk business with CHAN Kam-hung. He knew that US dollar notes were involved. He heard the people involved in the transaction have a conversation about forged notes. He overheard someone say that the US notes were forged notes. He understood that he would be required to stand guard and to protect the forged notes. His remuneration would be some $30,000. While he was acting in that capacity he was arrested as he left the hotel.

21. At the trial the statement was contested. A voir dire was held. He gave evidence that he was assaulted, that he was threatened. When the police found him uncooperative, they started to edit his statements and they fabricated answers to questions so as to convict him. The statement was admitted.

22. In the event the jury convicted him of this offence. He applied for leave to appeal against conviction and in support advanced two grounds which are largely overlapping. The first complaint was that the judge failed to adequately or at all to deal with the applicant's evidence and thereby deprived the applicant of having his defence as to the manner in which the statement was taken put in a fair and balanced manner to the jury.

23. The second ground was that the judge, in dealing with the cautioned statement, first made certain remarks damaging to the defence case and second that he failed adequately to direct the jury on the defence on the general. It was submitted that for these two reasons the conviction is unsafe and unsatisfactory.

24. Dealing with the cautioned statements and the allegations made by the defence, the judge addressed the jury in these terms:

"It has been suggested to the taker that the defendant was not co-operative and that while he did not beat the defendant P.C. 5739 and two more P.C.s did. They were not identified. It was also suggested to this witness that he deliberately edited the defendant's answers to suit the case against him and give him the job of guard."

25. He analysed the various aspects of the allegations and finally he said to the jury:

"You have heard the defendant give evidence. You have heard him admit that he did not complain to any person about this ill-treatment - to the magistrate before whom he appeared on two occasions, to the prison authorities when he was on remand, to the O/C Wanchai Police Station where he was etained or to the Complaints Against Police Office."

26. It was contended that these remarks were prejudicial to the defence. In his summing up to the jury the judge is entitled to make comments provided that they are fair. We can see no unfairness, nor indeed undue strength in the passages complained of. Nor can it be said that the nature of the defence was not before the jury. The trial was a short one and it was not encumbent upon the judge to repeat every word of the evidence. We find that there is no substance in the first ground of complaint.

27. The second was that the judge failed to put the general defence case adequately or at all.

28. The defence was simply that, on the 17th of April 1985, the applicant went to the coffee shop, Furama Hotel to meet Mr. CHAN Kam-hung to discuss business with him. At all times they were inside the coffee shop except for a visit to the toilet. They both went. It was in the toilet area that he saw someone have a brief conversation with Chan. He and Chan then returned to the coffee shop to continue their discussion until 3 p.m. As they left the hotel for home they were arrested. The rest of his evidence related to the statement. This defence, if it can be called that, of innocent involvement was not specifically put to the jury.

29. A judge must, as a matter of course, put a defence, however spurious, to the jury. However here the judge had referred to the allegations as to how the cautioned statement was obtained. The statement was the only incriminating evidence to connect the 3rd applicant with the offence. Once the jury gave weight to that statement the applicant's conviction was a foregone conclusion. In any event, it was a short and simple case. The jury had heard the 3rd applicant in evidence shortly before the address of counsel and the summing up. The defence evidence must have been clear in the minds of the jurors.

30. In The Queen v. KWONG Chiu & Others,⁽³⁾ this Court held that a judge was not required to present a full picture of al1 the facts canvassed by the defence. Giving judgment of the Court Cons J.A. (as he then was) said:

31. There is no merit in ground 2 either. The 3rd applicants application for leave to appeal against conviction is dismissed.

Court adjourns.

Court Resumes

Silke, J.A. & Penlington, J.: (Li, V.-P. being indisposed): (Sentence : Ho Wai Kong - 3rd applicant)

Silke, J.A.:

32. As to sentence: it was necessary for the applicant, Ho Wai Kong, to seek leave to appeal against sentence out of time. Mr. Persaud has done this in the face of the Court. In his Notice seeking leave to appeal, filed on 30th October 1985, he had not sought leave to appeal against sentence.

33. In the normal course, it would be most unlikely that he would have today, even on advice given to him by counsel, been granted leave. However, in the circumstances of this case, we thought it proper that it should be granted. It is only the fact that appeals of his co-accused in respect of sentences have been allowed which has brought us to take this course.

34. That having been said, we think that the sentence of five years passed upon him was not wrong in isonlation but, as we have reduced the sentence of six years imposed on the 1st and 2nd applicants to one of four years, we think it only right that the defendant should have the a benefit of that  and that his sentence should also be reduced. His roll was a much smaller one than that of either of his co-accused. To that extent, the application is granted, the matter treated as the hearing of the appeal and the appeal allowed. The sentence is reduced from five to four years.

Conduct of solicitors:

35. I would add this in relation to that which transpired at an earlier stage of these proceedings. Ho Wai Kong, the 3rd applicant, filed his application for leave to appeal against conviction on the 11th November 1985. This contained homemade grounds. He applied for legal aid and was granted it. Competent counsel was assigned on 13th January 1986. Counsel signed "Substituted Grounds", that is in substitution for the homemade grounds, on 1st February. These grounds were filed on 6th February by the Director of Legal Aid.

36. There was an application for a portion of the transcript to be supplied and this application was granted.

37. Meanwhile, for reasons which, speaking for myself I totally fail to understand, Ho Wai Kong on 3rd March 1986 discharged the Director and instructed a  private firm. They briefed another counsel, Mr. Persuad, and they filed, on 10th March that which were described as "Amended Grounds of Appeal" and which had been signed on 8th. March by Mr. Persaud.

38. When the matter came on this morning, the 14th March, it soon became clear that the instructions given to Mr. Persaud were grossly deficient. He was not aware of the "Substituted Grounds" filed by the Director of Legal Aid and he had not been provided with the portion of the transcript, of the existence of which his instructing solicitors were aware. We granted a short adjournment to allow Mr. Persaud to consider the "Substituted Grounds" and, when the Court resumed, he abandoned his own"Amended Grounds" and relied upon and subsequently argued those "Substituted Grounds".

39. We asked for an explanation for the lack of instruction. Mr. Persaud was unable to provide us with one, he being not attended by a solicitor in this Court though some person from the office was present. For myself, I doubt his right of audience in those circumstances but, be that as it may, we adjourned the hearing of the appeal to half past two and directed that an explanation be offered, to us by the solicitors firm through counsel.

40. We have now been told that the solicitors took instructions from Ho on two occasions at the end of February. These resulted, first, in the letter dated 27th February to the Registrar of the Supreme Court informing him that they had instructions from Ho Wai Kong; secondly, in Ho's writing a letter to the Director of Legal Aid on 28th February discharging his legal aid - this resulted in the formal notice from the Director of the 3rd of March.

41. We were told that on 1st March, the solicitors asked the Clerk of Court for the papers and received those which were then available. From then on, no attempt was made to ascertain from the Director of Legal Aid, or from the Court, whether there were any other papers. It is clear that such papers did exist.

42. We are not satisfied with the explanations offered. We intend to refer the matter to the Law Society for whatever action they may wish to take.

43. In particular, the Law Society may wish to discover why it was that Ho Wai Kong decided to discharge his legal aid and to employ the private firm concerned in this matter. I say "we" because that which I have just said has the approval of my Lord the Vice-president, who is indisposed, and my Lord Mr. Justice Penlington.

Penlington, J.:

44. I entirely agree with all that Silke, J.A. has said.

(1) Criminal Appeal No. 545 of 1982

(2) Criminal Appeal No. 137 of 1984

(3) Criminal Appeal No. 250 of 1985

Representation:

J. Kwong, Esq. (D.L.A.) for D1.

A.M. Niamatullah, Esq. (Chung, Kwan, Chan & Evans) for D2.

N. Persaud, Esq. ( So & Karbhari) for D3.

A.S. Hodge, Esq. for Crown.