HKSAR v. Leung Kwok Chung

CACC000541/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.541
(Criminal)

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Coram: Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 18 June 1998

Date of Judgment: 18 June 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 29th July 1997, the Applicant pleaded guilty in the District Court before Deputy Judge Duggan to two charges in an indictment containing six counts. On 15th August 1997, he was sentenced to four years' imprisonment for conspiracy to forge, contrary to sections 71 and 159A(1)(a) of the Crimes Ordinance, Cap.200. He was also sentenced to a consecutive term of three months' imprisonment for the possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177.

2. In passing sentence the judge said:

"The defendant has admitted these charges and notification of plea was made prior to preparation for trial which otherwise would have been a reasonably lengthy one. The defendant should be given credit for that.

There is no doubt that this type of offending is treated seriously and that sentences of a deterrent nature have regularly been imposed. The damage done in the commercial sphere by such an operation is substantial and it is proper that a firm line is taken with offenders.

In considering sentence, I am assisted by the decision of the Court of Appeal in R v Chan Sui-to and Wong Siu-mei, Cr.App. 115 of 1996, where the court reviewed the prior decisions and suggested as follows:

'An accused who plays an active but not necessarily a key role in a medium-sized operation involving between $50,000 - $150,000 with no elaborate planning and equipment and without an international dimension should receive a sentence of 5-6 years after trial. Sentences may be adjusted upwards or downwards according to circumstances.'

The facts placed before me and agreed by the defendant are a little sketchy in terms of some of the criteria mentioned by the Court of appeal as being factors relevant to sentence.

In the present case, the defendant was clearly the operator of this forgery undertaking. Reasonably sophisticated equipment was used. A large number of credit cards were 'compromised', to use the wording in the summary of facts. The defendant recruited other defendants to assist the operation. I have no doubt that such an operation can be classified as a medium-sized one and that the defendant was the ringleader.

I think the appropriate starting point is one of 6 years' imprisonment. I propose to give a one-third discount for plea and other mitigating factors."

3. We note that the Applicant came before the court as a man of bad character, having previously served sentences of up to five years imprisonment. Two of his convictions related to the use and possession of false instruments. In his Grounds of Appeal, he complains that the starting point of six years was too high. He complains that the sentence of three months on the second charge should not have been made consecutive to the four years' sentence on the first charge. He says that the sentence in the Chan case to which the judge made reference in the court below is an indication that the sentence should have started below six years as a starting point.

4. In court today, he has added to those grounds by saying that he did give some information to the authorities. He complains now that his full mitigation was not placed before the court which might have shown that he was not the mastermind. But, as we have pointed out to the Applicant already during this hearing, no credit is given for information which does not produce some positive result.

5. We are satisfied that there is no merit in these grounds. On the facts of this case, the judge had correctly assessed the Applicant's role as the ringleader, whether or not there was a mastermind in the background, of a medium-sized operation in which this Applicant was responsible for recruiting others to assist the scheme.

6. Accordingly, we shall refuse leave. As there is no merit to the application, we will order that three months of the time that the Applicant has spent in custody awaiting this hearing shall not count towards his sentence.

Representation:

Miss Maggie Yang, S.G.C. for D.P.P./Respondent

Applicant in person.