HKSAR v. Lau Ka Keung

CACC 200/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 200 OF 2005

(ON APPEAL FROM DCCC NO. 784 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Yeung JA

Date of Hearing: 17 February 2006

Date of Judgment: 17 February 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This is an application for leave to appeal against sentence.  The applicant faced 2 charges in the District Court, both of which he denied.  He was, at the time of the commission of the offences, a serving police constable.  In all, he had been a member of the Police Force for 21 years.

2.The 1^st charge, contrary to section 74 of the Crimes Ordinance, Cap. 200, was that on 6 January 2001, the applicant:

“… used copies of instruments which were and which he knew or believed to be false, namely 3 photocopy receipts purportedly issued by Chan Ka-fai on 18 April 1999, 23 April 1999 and 28 April 1999 respectively, with the intention of inducing Cheng Ka-chun to accept them as genuine …”

The 2^nd charge related to the theft of the applicant’s own police warrant card on 8 December 2003.

3.On 14 April 2005, the applicant was convicted on both charges following a trial before Judge Chua.  He was sentenced on the same day to a total of 4 years and 4 months’ imprisonment.

4.The facts were very straightforward.  At a time when the applicant was heavily in debt, he made a proposal to PW1, who happened to be an ICAC informer, that he was prepared to pledge his police warrant card in order to obtain a loan.  As a result, arrangements were made for him to be introduced to a second person who was also an ICAC informer (PW2).  A meeting between PW2 and the applicant then took place in the presence of an ICAC undercover officer named ‘Paul’ who posed as a loanshark.  Several meetings and telephone conversations subsequently took place between the applicant and Paul most of which were recorded.  These demonstrated that the applicant was trying to sell his warrant card.  As Mr Tse, on the applicant’s behalf, has now realistically accepted, the initiative to sell the warrant card came from the applicant.  The price the applicant was asking was $20,000 but eventually, on 8 December 2003, he accepted Paul’s offer to buy the warrant card for $15,000 and, soon afterwards, he was arrested in possession of the marked money used by Paul to effect the purchase.

5.The 1^st charge related to events which were much earlier in time.  In August 2000, the applicant was subject to an internal Disciplinary Review in regard to unauthorised loans and his failure to report investments.  When he was interviewed by an inspector and a sergeant, he claimed he had borrowed money from a Madam Lo and had used the money for a joint investment with a ‘Mr Chan’ who had later fled to the Mainland.  He produced to the police inspector in the Review proceedings 3 photocopied receipts which purported to have been issued on three different dates in April 1999 by ‘Mr Chan’ recording the receipt from the applicant of three separate sums of $250,000.  The inspector in the Disciplinary Review accepted these as genuine.  However, evidence was given by PW6, a former girlfriend of the applicant, that in the middle of the year 2000, the applicant had asked her to prepare the receipts.  The applicant also asked PW7, a friend of PW6, to pretend to be ‘Mr Chan’ and to give evidence to the police in the internal investigation they were conducting.

6.When sentencing, the judge said, in relation to the 2^nd charge, that the applicant would know that:

“… only those who intend sinister and dangerous use of [the warrant card], and who would want to pose as a policeman and flash a genuine warrant card or … use the genuine warrant [card] to produce better copies would pay the kind of money [he] had asked for.” (Appeal bundle p. 35)

On this charge the judge imposed a sentence of 3 years and 3 months’ imprisonment.

7.As to the 1^st charge, the judge said that she considered “the element of corruption” in procuring his girlfriend to fabricate false receipts justified a 2-year sentence.

8.Applying the totality principle, the judge ordered that 32 months of the sentence on the 2^nd charge should run consecutively to the sentence on the 1^st charge, with the remaining 7 months of this sentence to run concurrently, and further discounted the sentence by 4 months for the applicant’s good years of police service.  This left a term of 4 years and 4 months’ imprisonment to be served.

9.In his grounds of appeal, Mr Tse, who also appeared in the court below, firstly complained that the sentence on the 2^nd charge was manifestly excessive.  In this regard, he submitted that the judge had insufficiently taken into account the mitigation advanced by counsel.  Secondly, he contended that insufficient consideration had been given to the principle of totality when the judge ordered that only 7 months of the sentence on the 2^nd charge should run concurrently with the 2-year sentence on the 1^st charge.

10.We are not able to agree with either of these contentions.  This was, on any view, an extremely serious case of its kind.  Dealing with the 2^nd charge, the applicant was under the impression he was selling his warrant card to a loanshark and, when he was speaking to Paul, he admitted thinking that the warrant card would be used by someone impersonating a police officer.  We have not been taken to any similar case but we have no doubt whatever that the sentence the judge imposed on this charge was entirely appropriate, having rightly distinguished this case from the wholly different, and much less serious, facts in R v Petrus Yau Pui-tak, HCMA 777/1996.

11.Mr Tse also submitted that the loss of the applicant’s pension gratuity of $764,170 and monthly pension of $4,548 arising from his conviction on these charges was itself a substantial punishment.  He argued that this factor should have been recognised by the judge to a greater extent than the reduction by only 4 months from the totality.

12.The judge, however, had been right to point out in her Reasons for Sentence that the applicant had given no thought to his family as he got himself deeper into trouble.  Whilst there have been cases where the loss of pension rights has been recognised as an important factor in mitigation, this is a case of sufficient gravity that we do not consider the judge needed to do more than she did.  The applicant was well aware of the risks he was taking, which included the jeopardising of his pension.  The possible results of selling his warrant card to a member of the criminal fraternity would have been all too clear to the applicant.  He has let down not only his family but, by his criminal conduct, also the Police Force of which he was once proud to be a member.

13.Lastly, on the question of totality raised under the second ground, these were two entirely separate offences.  It is apparent that the judge had totality well in mind and her approach has given us no cause for concern.

14.Accordingly, having concluded that the sentence was in no sense manifestly excessive or wrong in principle, the application is dismissed.

Ms Evelyn Tsang, SGC, of the Department of Justice, for the Respondent.

Mr Tse Hon Yuen, instructed by Messrs Tang & Lee, assigned by Director of Legal Aid, for the Applicant.