The Queen v. Koo Pui and Others

CACC000469/1985

BETWEEN

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

Date of Hearing: 14 March 1986

Date of Judgment: 14 March 1986

___________

JUDGMENT

___________

Li, V.-P.:

1. The 1st and 2nd applicants were two of three persons convicted of uttering forged documents on their own pleas. 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 immediately upon their delivery of one suit case full of these 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 himself eras 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 2nd applicants and one Mr. CHAN Kam hung. In the meanwhile one 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 this temptation and found a buyer. The 2nd applicant also gave a full cooperation 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. These two applicants pleaded guilty as an indication of remorse. They both had clear records. However, in the course of his plea in mitigation counsel for the 1st applicant cited three recent cases reporter in the newspapers on sentences with a view to urge the judge to be lenient. Rightly or wrongly the judge took these three cases as recent cases and had the feeling that this type of offence was creeping up and becoming prevalent. Therefore, he saw fit to impose a deterrent sentence despite these two applicants were first offenders.

5. 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 it was wrong in holding that the three cases cited were similar offences that a deterrent sentence on a first offender was called for. Similarly, counsel for the 2nd applicant contended that the judge failed to give sufficient consideration to the assistance that the 2nd applicant had given to the police by making a full and frank admission in his cautioned statement his plea of guilty, the role he played in the offence, his previous good character and his family circumstances.'The judge failed to consider the sentences imposed on more serious cases of forgery offences. 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 there to guars against any person who might see fit to snatch either the forger US bank notes or the money that was used to pay for the forged bank notes.

6. Admittedly both applicants were full participants of this offence. Both counsel for the applicants made use of a list of the sentences supplied by the Crown. Having perused this list of sentences in various cases in recent years, it appears that there is no standardised form of sentence. It is fair to say that they ranged from the average 3 to 6 or 7 years, be it a plea of guilty or plea of not guilty.

7. Learned counsel for the Crown very fairly supplied us further with another list that was compiled by the Commercial Crimes Bureau showing equally varied sentences in various different cases. He invited this Court, if considered proper, to issue a guideline.

8. We feel that every case should depend on its own merit. In the cases of this nature it is not appropriate to give a definite guide. Discretion must be left to the trial judge. However, we do feel that in the present instance, the learned trial judge had not given sufficient consideration to the clear record of both applicants. Nor did he give sufficient allowance for the plea of guilty. If the average sentences varied between say 3 to 7 years when there were convictions after a full trial, then it appears that the sentence of 6 years on these two applicants were manifestly excessive. For this reason we will grant leave to the 1st and 2nd applicants to appeal against sentence, treat the application as the appeal proper. We allow the appeal and the sentences of 6 years on these two applicants be reduced to one of 4 years on each of the applicant.

9. 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 ⁽¹⁾, which was a case of possession of instruments for forgery. It was a very bad case. A plea of not guilty was entered. The sentence was imposed after full trial. He was sentenced to 8 years imprisonment. On appeal to a division of this Court reduced it to one of 6 years imprisonment.

10. The case of NGAN Chun-yee ⁽²⁾, was a similar case of possession of forged bank notes. A11owing the appeal against sentence the learned Chief Justice said:

Thus 6 years would be a proper sentence in the case of conviction after a full trial.

11. Having regard to these cases vie are of the opinion that in the case of uttering forged bank notes, particularly one of the magnitude in this present case, a participant would not be justified in saying that a sentence of 6 to 7 years was manifestly excessive if convicted after a full trial. On a plea of guilty, he could expect a slight 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 must be higher. In this particular case, having regard to the circumstances ire feel that the sentence of 4 years on each of these two applicants is appropriate.

12. The 3rd applicant was convicted of the same offence as the other two. The prosecution evidence was that again Inspector a Santos posed as a potential American Singaporean and a buyer of those notes. On the day of the transaction the first two applicants who pleaded guilty 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 lobby area away from the toilet area to join the party consisting of Santos and the 1st applicant. Having another woud with them the 2nd applicant went again for the second time to have a word with CHAN Kam-hung and this applicant. Prior to all these conversation that took place, the applicant was observed to have been watching the table where the 1st and the 2nd applicants and Santos were seated. This applicant was watching them while walking around the foyer. All three applicants and Chan left the lobby. When the four of them eventually returned to the Furama Hotel lobby the 1st and 2nd applicants then went upstairs. They were arrested there. This applicant was arrested together with CHAN Kam-hung as they left Furama Hotel. He was then taken back to the Commercial Crimes Bureau where he made a cautioned statement.

13. 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 were having a conversation about forged notes. He understood that he would be required to stand guard to protect the forged notes. His remuneration would be some $30,000. When he was acting in that capacity that he was arrested as he left the hotel.

14. At the trial the statement was contested. A voir care was held. He gave evidence that he was assaulted and threatened. When the police found him not cooperative, theystarted to edit his statements and fabricated his answers in reply to questions so as to convict him.

15. In the event the jury convicted him of this offence. He applied for leave to appeal against conviction. In support he advanced two grounds which were largely overlapping. The first complaint was that the judge failed to adequately or at all to deal with the applicants evidence and thereby deprive the appellants of having his defence put in a fair and balance manner to the jury. This refers to the judge's comment on his challenge on the admissibility of the cautioned statements.

16. The second ground was that the judge in dealing with the cautioned statements made certain remarks damaging to the defence case in his allegations. The Judge failed adequately to direct the jury as to the defence case on the general issue to the jury. It was alleged that for these two reasons the conviction is unsafe and unsatisfactory.

17. Dealing with the cautioned statements, the allegations by the defence, the judge has directed the jury categorically the allegation made by the defence, namely that he had been assaulted by the police officers. Then the judge said in these terms:

18. He analysed the various aspects of the allegations and finally said to the jury.

It was contended such remarks were prejudicial to the defence. But the judge was entitle to make comments and these comments were fair ones.

19. As to the failure to put the defence allegations to the jury the judge did mention about the assault, particularly the assault as denied by P.C. 5739. In a short trial of this nature he referrer the jury to the defendant's evidence. That was evidence on the general issue which was put before the jury. We find that there was no substance in the first ground of complaint.

20. The second was that the judge failed to put the defence case to the jury The defence was simply that on the 17th of April 1985 the applicant went to the coffee shop, Furama Hotel, to meet Mr. CHIN Kam-hung to discuss business with him. ft 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 had a brief conversation with Chan. He and Chan returned then 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 gave an account as to how he was beaten, threatened and had his statement edited and fabricated to which the judge referred in the direction to the jury. Thus the only part of his evidence not put to the jury was his presence in the Furama Hotel.

21. The judge should, as a matter of course, put the defence, however spurious, to the jury. In this case, the judge did refer to his allegations as to how the cautioned statement eras obtained. It was obvious the statement was the only evidence to connect the 3rd applicant with the offence. Once the jury gave weight to the statement the applicant's conviction was a foregone conclusion. In any event, it was a simple case. The jury heard the 3rd applicant's evidence shortly before counsel's address and the judge's direction. While it is true that the Judge did not set out the defence case as a separate part of his summing-up, a careful reading of it makes it clear that it was put to the jury and we have no doubt they were well aware of what it was.

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

23. There is no merit in ground 2 either. The 3rd applicant's application for leave to appeal against conviction is dismissed.

(1) Crim. App. No. 545 of 1982

(2) Crim. App. No. 137 of 1984

(3) Crim. App. No. 250 of 1985

Representation:

Mr. Jimmy Kwan (D.L.A.) for D1

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

Mr. N. Persaud (So & Karbhai) for D3

Mr. A.S. Hodge (Crown Prosecutor) for respondent