HKSAR v. Ng Chi Yeung and Others

CACC 19/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 2005

(ON APPEAL FROM DCCC 610 AND DCCC 850 OF 2004)

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BETWEEN

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Before:  Hon Woo VP, Cheung JA and Tang JA in Court

Date of Hearing:  17 August 2005

Date of Judgment:  17 August 2005

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.They are before us 4 applicants.  The 3^rd applicant, who was the 5^th defendant below, seeks leave to appeal against both conviction and sentence in relation to the 6^th charge.  The other applicants, who were the 3^rd, 4^th and 6^th defendants respectively, seek leave to appeal against sentence only.  They were convicted on their own plea. 

2.The charge, common to the 1^st, 2^nd and 4^th applicants, was the 7^th charge in respect of which they were each sentenced to 3 years and 4 months’ imprisonment, which is equivalent to 5 years before the 1/3 discount for their plea.

3.The 1^st and 2^nd applicants were in addition convicted of the 2^nd charge on their plea for which they were sentenced to 2 years’ imprisonment.  We should say at the outset that as each of these applicants was sentenced to 3 years and 4 months’ imprisonment for the 7^th charge, it makes no difference because the 1^st and 2^nd applicants received an overall sentence of 3 years and 4 months, the judge having ordered 1 year and 4 months of that sentence to run concurrently with the sentence of 2 years for the 2^nd charge.

4.The result insofar as the 1^st, 2^nd and 4^th applicants were concerned is that they were sentenced to imprisonment for 3 years and 4 months. 

5.We are happy to adopt the following summary of the charges from the respondent’s written submission:

“	4.	… the 2nd Charge – ‘Conspiracy to have custody or control of counterfeit notes with intent’ and the 7th Charge – ‘Conspiracy to possess false instruments with intent’.  D5 (the 3rd Applicant) was convicted after trial of the 6th Charge – ‘Conspiracy to forge documents’.
	5.	The particulars of the 2nd Charge alleged that D1-D4, on or before 30 July 2003, in Hong Kong, conspired together and with other persons unknown, had in their custody or under their control, counterfeits of currency notes which were, and which they knew or believed to be counterfeit notes intending either to pass or tender them as genuine or to deliver it to another with the intention that they or another should pass or tender them as genuine.
	6.	The particulars of the 6th Charge alleged that D1-D6, on or just before 30 July 2003, in Hong Kong, conspired together and with other persons unknown to make instruments, which were false in that they purported to be made in the forms in which they were made on the authority of a person who did not in fact authorize the making in those forms, with the intention that the said persons or another would use them to induce someone to accept them as genuine and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.
	7.	The particulars of the 7th Charge alleged that D1-D6, on or just before 30 July 2003, in Hong Kong, conspired together and with other persons unknown to have instruments, which were, and which they knew or believed to be false, namely, utilities bills, Inland Revenue Department Assessments, Tax Demand, bank statements, and acknowledgement of application for Hong Kong Permanent Identity Card, Employer Participating Mandatory Provident Fund Monthly Statements and Notice of Benefit Transfer of Policy, in their custody or under their control, with the intention that they or another would use them to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some acts to the prejudice of other persons.”

The facts

6.The offences came to light when the police raided a residential unit in Boundary Street.  The 1^st and 2^nd applicants were found inside the premises.  In the premises, about 900 documents were found in various places the majority of which were confirmed to be counterfeit currency or forgeries.

7.They included banknotes in the sum of about $36,500, a large assortment of blank and filled bank statements, utility bills, salary statements, Inland Revenue tax demand notices in the names of different persons, written acknowledgements of applications for Hong Kong Identity Cards, police warrant cards etc.

8.Moreover, computer equipments were found together with a notebook containing descriptions of how to operate the computer and how to make copies of documents.

9.Those premises had been let to a person who had used a stolen Identity Card for the purpose.

10.The 3^rd applicant was arrested after his fingerprints were matched to those found on the forged documents.

11.This is what the judge said when passing sentence:

“	14.	Assessing the overall situation in relation to the premises at number 33, Boundary Street, this was on all the available evidence a forgery factory specialising in producing either new identities for criminals on the run for past misdeeds, or new identities for those who wished to perpetrate misdeeds in the future.  An operation such as this one goes to the heart of the whole system of documentary proof of identity and subverts that system for unlawful purposes.  I say this because there cannot have been any lawful purpose for what the defendants were doing.
	…
	16.	Indeed, the precise intentions of the operators of this forgery factory were not readily discernible from the evidence.  However, the three defendants who pleaded guilty agreed the following statement in the Summary of Facts upon arraignment:
	17.	‘All three defendants were party to a scheme to use false documents to approach banks and other financial institutions for fraudulent purposes.’  I have to say that those documents which I have examined in court relating to false identity were all produced to a very high, indeed professional, standard.  I take the view that these are very serious charges, i.e. those related to Charges 6 and 7, because so many different types of commercial fraud depend on ‘forgery factories’ for their stock in trade.  I should point here that I see no real distinction for sentencing purposes between Charges 1 and 2 – that is two counterfeit currency charges or between Charges 6 and 7, the two false document charges.”

1^st, 2^nd and 4^th applicants

12.We would deal first with the 1^st, 2^nd and 4^th applicants’ appeal against sentence.

13.We believe the crux of the matter is whether the starting point of 5 years adopted by the judge for 7^th charge was excessive.

14.Mr Richard Donald, counsel for the applicants, has submitted that the 5 years was at least 1 year too high.  He has referred us to HKSAR v Cheng King-lung, CACC 67 of 2002 and HKSAR v Wong Ka-ling, CACC 325 of 2003.

15.He has also submitted that the trial judge should have adopted the principles set out in R v Chan Sui-to [1996] 2 HKCLR 128. 

16.In Cheng King-lung, the court was concerned with offences involving the use of forged Identity Card and other documents used in the opening of bank accounts.  However, the main focus of the decision was on whether the final result of 6 years’ imprisonment was impeachable.  That sentence was arrived at after it was enhanced by 50% pursuant to section 27(11) of the Organized and Serious Crimes Ordinance, Cap. 455.  So in that case, the starting point adopted by the trial judge was indeed 4 years.  However, this court also said that a sentence of 5 years’ imprisonment before enhancement was justifiable, see para. 29.  In the result, the court did not interfere with the total sentence of 6 years after enhancement although it was of the view that a 50% enhancement was not justified.

17.The case of Wong Ka Ling was similarly concerned with enhanced sentences under section 27(11) and there the question was whether the sentence of 6 years and 3 months after enhancement was impeachable.  This court held that it was not.  Hartmann J giving the reasons for the judgment of the court in Wong Ka Ling said:

“No guidelines
14.	It has been stated in a number of authorities that there are no sentencing guidelines in cases of this kind.  As Mayo VP said in HKSAR v Mak Shing (unreported) CA 322/2001, this is because the circumstances of each case may vary almost infinitely.
15.	In HKSAR v Cheng King Lung [2002] 4 HKC 67, at 73, Stock JA made the following observations concerning the assessment of sentence in matters of this kind:
“Mr McGowan then asserts that the 6-year starting point for some of the offences (or as an overall starting point if that is what the judge took) was too high.  He cites a number of cases in which greater sums were involved where similar or lower starting points were adopted.  We note those cases, but we say in response that the sum involved is not the be-all and end-all of sentence.  The sophistication of these offences, the very considerable planning which they involved, planning by numbers of players, the ongoing nature of the scam, the number of offences, the boldness and craftiness, embracing as some did the cutting of cables to particular offices; these are the distinguishing features of these offences, to which weight is to be given.”

18.Insofar as the R v Chan Sui-to is concerned, we fail to detect any inconsistency in the judge’s approach.

19.On the other hand, Mr Saw, SC, DDPP who appeared for the respondent, has referred us to HKSAR v Chow Fu-keung, CACC 525 of 2000.  In the Court of Appeal, the starting point of 6 years was reduced to 5 years.  In that case, the appellant pleaded guilty in the District Court to one charge of conspiracy to defraud in that he and a person unknown conspired to defraud a number of banks and credit card companies or centres, to grant credit arrangement in the form of credit card accounts, and did so by a number of devices, in particular by making false representations as to his address and occupation, by submitting photocopies of a false bank passbook, and of bank statement, by which to evidence, untruthfully, receipt of salary payments; and by submitting bogus employment letters from a company.  A total of 13 credit card companies were involved.  The applicant also obtained a bank account at Citibank, and created a shelf company to assist in the scheme of deception.  In the event, 4 cards were obtained and used, and a total of about $138,850 was outstanding on these cards at the date of the applicant’s arrest on 28 July 2000.  So this is a case where a starting point of 5 years was adopted.

20.Here having regard to the circumstances mentioned by the judge and quoted in para. 11 above, we do not regard the starting point of 5 years for the 7^th charge to be excessive.  That being the case, the application by the 1^st, 2^nd and 4^th applicants for leave to appeal against sentence is refused.

3^rd applicant’s appeal

21.We now turn to consider the 3^rd applicant’s appeal against conviction and sentence.

Conviction

22.It was the defence of the 3^rd applicant that he had gone to the premises on one occasion only and that this was the reason why his fingerprints were found on the exhibits seized at the premises. 

23.In all, 40 fingerprint impressions from the 3^rd applicant were lifted from the computer and 25 documents found at different locations on the premises. 

24.However, the main ground of appeal centred on the cross-examination of the 3^rd applicant on his conviction in DCCC 1267 of 2003 where he was sentenced on 14 April 2004 to a total of 4 years’ imprisonment.  It was the 3^rd applicant’s defence that he had gone to the premises around 20 July in order to purchase a new Identity Card for himself because he was on the run from the police and that he left his fingerprints because he knew one of the defendants and because of his previous involvement in this kind of offences.  This is what the judge said about the evidence in his reasons:

“	45.	D5, Ho Chung-wai, is aged 25.  He says he only went to the subject premises once around 20 July in order to purchase a new identity card for himself because he was on the run from the police.  His counsel, Mr Donald, caused the OC case of DCC 1267/03 (the “earlier case”), that is Detective Senior Inspector McGlinn to be called to court during the prosecution case, together with Senior Detective Cheng Chu-wah, the officer who had arrested D5 on an outstanding warrant one year after he had fled the scene of that earlier case.  In chief, the inspector was simply asked if he was the OC case in that earlier case and then presented for cross-examination.  He was then cross-examined by Mr Donald whose very first question was as follows:
	46.	Q. “That was a case involving a conspiracy to defraud, including forgery and fake documents?”  A.  “Yes, and possession of false documents and arson on 19 August 2002.” Q.  “the conspiracy to defraud was between 1 May 2001 and 29 September 2001?”  A.  “Yes.”
	47.	The senior inspector went on to reveal that D5 had been sought by the police from the time it was revealed that the landlord of that particular premises had rented them out to him.
	48.	At the conclusion of the inspector’s evidence, the Prosecutor, Mr Tolliday-Wright applied to place details of the charges in DCC1267 before this court.  Objection was taken and I declined that request, ruling that he could only do so in rebuttal during cross-examination of the defendant if and when that became necessary.
	49.	The detective who had arrested D5 on those earlier charges agreed with Mr Donald that the defendant at that time carried in his wallet two forged documents of identity.  That is an application for a Hong Kong Identity Card and a driver’s licence, both bearing the defendant’s photograph but in the name of “So Kin-yin.”
	50.	When the defendant himself came to testify, he was asked almost immediately by his counsel; Q. “You were previously convicted of another case involving ‘conspiracy to defraud.’  How did that come about?”  A.  “It happened between 1999 and 2002.”  Q. “There was a police raid and a number of people were arrested.  What was your role in that case?”  A. “It was me who went out and used my face to make contact with those persons who wanted to get loans.”
	51.	Subsequently, Mr Donald again asked his client, “What, if anything, was your involvement in the manufacture of the fake documents in the first case?”  A. “I was not involved in their manufacture, but had encounters with those fake documents.  I had them in my hands and had taken a look. I just handed them back to those friends.”

The judge returned to the matter in paragraph 62 of his Reasons:

“	62.	Before leaving the case against D5, I should make the following observations: in his closing submissions for the defence, Mr Donald spent a great deal of time criticising the Prosecutor, Mr Tolliday-Wright, for cross-examining D5 in relation to his previous conviction in DCC1267/03.  From experience, I can say that Mr Tolliday-Wright is a very fair prosecutor.  There is no way that he would have gone down that avenue if the gate had not been opened by the defence in the first place.  I say this for two reasons:  (1), it was the Defence who insisted that the OC case of the earlier case be called to testify, and it was defence counsel that put the nature of those earlier charges to the witness.  (2), it was defence counsel who asked D5 to explain his role in that previous case to the Court in his examination-in-chief.
	63.	As to item number 1 above, there was no need whatsoever to call the previous OC case to give evidence.  This could, of course, have been dealt with by way of Admitted Facts, put in by agreement with the prosecution, that his client had been “on the run” from the police for the previous year for an unspecified offence.  As to item number 2, I had, of course, disallowed the record or any details of the previous offence to be placed before the Court “unless it becomes necessary in rebuttal.”  Once Mr Donald chose to question his client on what was his role in the previous case, and once his client chose to give the Court a highly edited and sanitized version of events, then the defendant became liable to be cross-examined on his answers so as to show he is not entitled to be believed.
	64.	In the ordinary course, section 54 of the Criminal Procedural Ordinance provides a shield against defendants being asked any question that “tends to show” he has committed or has been convicted of any offence, other than the one he now faces in this court.  However, that proviso does not apply to examination-in-chief.  It is intended as a shield to protect the defendant.  It does not prevent him from volunteering evidence, and it does not prevent his counsel asking questions leading to a disclosure of previous convictions or bad character, if such disclosure is thought to assist in his defence (see Hong Kong “Archbold” (2004) at paragraph number 8/174).  Once the defendant chooses to leave his shield aside, the prosecution may cross-examine on such matters, provided that it confines itself to only those matters revealed by the defence.
	65.	Accordingly, Mr Donald’s closing submissions on this issue are both misplaced and unwarranted.  Having said that, however, I find that these revelations by the defence are not relevant to the issue I have to decide here.  That is, quite simply, how did so many of D5’s fingerprints get onto the suspect documents at the subject premises?  To decide that issue, I will confine myself to those matters concerning the subject premises and ignore all extraneous matters.”

25.We are afraid we have some difficulty in appreciating Mr Donald’s point.  He seemed to suggest that the prosecution was not entitled to cross-examine the 3^rd applicant on his earlier conviction, and that he has referred us to Jones v DPP [1962] AC 635.  Jones v DPP was followed by this court in R v Tsang Sit-keung [1989] 1 HKLR 156 and at page 159C-D, this passage from Lord Reid’s judgment in Jones v DPP was adopted:

“If the jury already knew that the accused had been charged with an offence, a question inferring that he had been charged would add nothing and it would be absurd to prohibit it.  If the obvious purpose of this proviso is to protect the accused from possible prejudice, as I think it is, then ‘show’ must mean ‘reveal’, because it is only a revelation of something new which could cause such prejudice.”

Here, the previous conviction was revealed by the 3^rd applicant, as the judge observed in his Reasons. He said:

“

63.

…  Once Mr Donald chose to question his client on what was his role in the previous case, and once his client chose to give the court a highly edited and sanitized version of events, then the defendant became liable to be cross-examined on his answers so as to show he is not entitled to be believed.”

Clearly, that must be right.  And insofar as Mr Donald suggested that the probative value of such cross-examination was out-weighed by its prejudicial effect, the judge had make clear in para. 65 of his Reasons that he had not relied on the previous conviction in helping him reach his conclusions. 

26.So the application for leave to appeal against conviction is refused.

Sentence

27.Here, Mr Donald submitted that the starting point of the 5 years was excessive.  Essentially, he relied on the same submissions he had made in relation to the other applicants.  For the reasons given we would also refuse leave.

28.However, the 3^rd applicant has an additional point, namely, that if one takes into account his sentence in DCCC 1267 of 2003, then having regard to totality principle, the judge should not have made 2 years of the sentence of 5 years for the 6^th charge consecutive to the sentence that the 3^rd applicant was already serving. 

29.Mr Donald suggested that since the judge in the first conspiracy adopted the starting point of 6 years and deducted 2 years for the plea, the trial judge here was in effect adopting as the starting point when sentencing the 3^rd applicant, of 11 years, which was manifestly excessive.

30.We do not think it is right to say that the trial judge had adopted a starting point of 11 years.  Mr Saw has suggested perhaps the starting point adopted by the judge could be regarded as 9 years.  We do not think that it is right either.  Having regard to the fact that the 3^rd applicant was not entitled to any discount for the 6^th charge, the 2 years that he was ordered to serve consecutively was just a 2-year sentence.  So, the judge had only adopted a starting point of 8 years.

31.We have to consider whether the sentence of 6 years is manifestly excessive having regard to the totality principle.  Mr Donald has referred us to R v Tong Hoi-fung [1988] 1 HKLR 610.  There, the defendant was sentenced to 6 years for an armed robbery, which was to run consecutively to a sentence of 5 years imposed on him on a previous occasion for another robbery.  The Court of Appeal held that the proper approach was to view the matter as if the 2 cases were heard together.  They were of the view that the total sentence of 11 years was excessive and ordered partly consecutive sentences making a total of 7 years.

32.Now here, insofar of the 6^th charge was concerned, the offence took place on or just before 30 July 2003.  As noted, the offence arose out of a raid which took place on 30 July 2003.  In relation to DCCC 1267 of 2003, the 3^rd applicant had pleaded guilty to 5 charges of conspiracy to defraud and 1 charge of possessing forged instruments.  The 5 conspiracy charges related to 5 separate conspiracies in 1999, 2000 and 2001.  The possessing forged instruments charge arose out of a seizure of forged documents on 19 August 2002. 

33.It is obvious that the offences covered by DCCC 1267 of 2003 and this appeal are not connected in any way. 

34.Hence, this is a case where consecutive sentences are entirely proper.  However, we are concerned with the totality principle and must decide whether a starting sentence effectively of 8 years and an actual sentence of 6 years is manifestly excessive.

35.We do not believe the total sentence to be manifestly excessive.  As we put to Mr Donald during his submission, if the 3^rd applicant had been properly sentenced to 5 years for the 6^th charge, but because of the previous sentence of 4 years, he was made to serve a total of 6 years, that cannot be regarded as excessive or wrong in principle.

36.It is true that he has to serve 6 years instead of 3 years and 4 months which the other applicants have to serve.  But that is because they had pleaded guilty and was given a 1/3 discount.

37.In all the circumstances of this case, we are of the view that the total sentence of 6 years is not excessive.  That being the case, the 3^rd applicant’s application for leave to appeal in relation to sentence is also dismissed.

Mr D G Saw, SC, DDPP and Mr Derek Lai, SGC, of Department of Justice, for the Respondent.

Mr Richard D Donald, instructed by Hong Kong Bar Association’s Free Legal Service Scheme, for the Applicants