Wong Chi-kwok v. The Queen

CACC000545/1982

HEADNOTE

The only point of interest - p.17- 18 - possession of articles fit and intended for use in forgery - the words fit and intended in subsection 1 of s.76A of the Crimes Ordinance imply an objective that both as to the fitness of the articles for the criminal purpose and as to the fact that they are intended for use for such purpose.

BETWEEN

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Coram: Hon. McMullin, V.-P., Li and Silke, JJ.A.

Date: 30 December 1982

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JUDGMENT

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McMullin, V.-P. :

1. On 15th October 1981, a party of police, under Chief Inspector Roger of the Commercial Crimes Bureau, tried to enter premises at Block I in the Kingswin Industrial Building, at 42-50 Lei Muk Road, Kwai Chung. Finding it locked, and apparently untenanted, they went to Block J where lights had been seen at the 22nd floor level. The police party went up to those premises and were able to enter without difficulty.

2. Mr. Roger's purpose at this point was to find a telephone in order to seek further instructions from Headquarters concerning the execution of a search warrant pursuant to which he and his party had visited Kwai Chung. Within these premises they found the defendant Wong Chi-kwok, apparently supervising the work of another man who was installing some fluorescent lighting. Inspector Roger asked for permission to use the telephone and this was granted. He phoned Headquarters and it would appear that in the course of the exchanges, something was said which caused him and his party to look more closely at the premises to which they had come.

3. The premises consisted of two rooms and Inspector Roger and his men went through these looking carefully at the furnishings and other contents. The defendant followed the Police around. According to inspector Roger, the defendant looked progressively more uneasy as the search continued and once or twice asked the police what was afoot.

4. In one of the rooms there was an offset printing press and another device known as a platen press in the centre of which was fixed an embossing seal which, on closer inspection, Mr Roger saw to be closely similar to the seals of the Transport Department which are impressed upon driving licences, although the word "Transport" was misspelled. Elsewhere the police found a serrated metal strip of a kind which is commonly used in printing works and a rectangular card with the number B 546161 which Mr. Roger recognized as a serial number of a kind formerly used on Hong Kong driving licences.

5. These items aroused Mr. Roger's suspicion that the premises were being used for the forging of documents. A further phone call was made after which the defendant was arrested. A search warrant was procured and the premises thoroughly searched.

6. The police suspicions were amply justified by the discovery of the following amongst many other items: (1) a number of counterfeit $20 and $100 U.S. bank notes. These were found in a cellotape box on a shelf above a steel cabinet in the first room; (2) a brown packet underneath the bottom drawer of a steel filing cabinet which had to be broken open by the police. This packet contained a large number of facsimiles of partly completed Hong Kong adult identity cards, photographic positives of the front and of the back of a Hong Kong driving licence, 11 facsimiles of Hong Kong driving licences printed on blue paper and showing imitation security fibres, photographic positives and photographic negatives of height scales of the kind employed in the making of genuine Hong Kong identity cards and nine photographic portraits superimposed on height scales with serial numbers. Within the filing cabinet, there was also found a device known as a lamipacker which could be used for sealing identity cards or similar objects in plastic. It was not disputed that these partly completed identity cards and driving licences were forged or in the process of forgery. In the bottom drawer of the cabinet was found a flat green cardboard box bearing the legend Graphic Arts. Inside this box were found a number of photographic positives and negatives, each showing some detail of the markings on a U.S. bank note of either $20 or $100 denominations.

7. A large flat cardboard envelope was found on a shelf in one of the rooms. Within this envelope there were several large plastic sheets to which photographic negatives similar to those in the Graphic Arts box had been affixed in rows by sellotape.

8. Mr. Gray, the Government expert, explained how numbers of these negatives would be used, together with some of the other equipment found on the premises, to produce finished facsimiles of U.S.$20 and $100 notes.

9. Various other items were found in these two rooms which it is not necessary to describe. It was never seriously disputed that this equipment was referable to the forging of bank notes, identity cards and driving licences. Upon two of the photographic negatives with serial numbers of U.S. banknotes were found two finger prints of the defendant. His left thumb print was found on one of the negatives which had been contained in the Graphic Arts box and his left forefinger print was found on another negative mounted on one of the plastic sheets in the large envelope found upon the shelf in the inner room.

10. The defendant was searched. A sum of HK$20,000.00 was found in his possession. From the outset he maintained that he was merely employed by a person called Li Kwan. While he was still in police custody on the premises the telephone rang and he took the call. He intimated to the police that the caller was Li Kwan. There was controversy about what he said to the caller on the telephone on this occasion and to that I will come later.

11. The prosecution have throughout accepted that there was a person called Li Kwan, and a fair proportion of the investigation after the arrest of the defendant seems to have consisted of interrogations by an Inspector Yeung, the purpose being to ascertain the whereabouts of Li Kwan. It was not denied that the defendant had been co-operative in this respect, although in the end these enquiries led to nothing.

12. The defendant made two statements under caution after his arrest. The first of these was recorded by DC 11475 immediately after arrest in the premises on the 22nd floor of the Kingswin Building. In this he denied any complicity in or knowledge of the manufacture of forged identity cards or driving licences, these being the only items referred to in the cautionary preamble to the statement recorded by the police officer. The defendant explained that he had been employed by Li Kwan for the purposes of advertisement design and he added that at that date this work had not yet begun and he was therefore merely guarding the premises on the directions of Li Kwan.

13. Five days later he made a more elaborate statement while in custody. By this time the negatives bearing the applicant's thumb and finger prints had been found and examined. In this statement he admitted that he had found the negatives and the height scales and that these, together with the fact that the lamipacker appeared to have been used overnight on several occasions during his absence, had aroused  his suspicion that something illegal was afoot. He told the recording officer - who was not the officer to whom he had made the first statement - that he had tendered his resignation to Li Kwan but had been persuaded to stay on to the end of the month. He had agreed to that and was given $20,000 to see to the installation of some of the equipment, including filing cabinets and electrical fittings. Both of these statements were admitted in evidence without objection by the defence.

14. He was tried and convicted of three offences under s.76(A) of the Crimes Ordinance with being in possession of articles fit and intended for use in forgery. The first count relates to the paraphernalia concerning the facsimile United States banknotes; the second to that relating to the identity cards, and the third to that relating to the Hong Kong driving licences. The particulars of each charge set out various items seized by the police on the afternoon of 15th October, the most important of which have already been referred to.

15. The defendant gave evidence. He told the court that he had had some typographic printing experience. In 1979 he had injured his hand in a fall. He was introduced by a friend to Li Kwan who gave him some treatment. Li was said to be in the watch and clock trade. After this they saw each other occasionally and in September 1981 Li told him that he was going to set up an advertising design business. He took the defendant to the 22nd floor of the Kingswin Industrial Building, Block J to show him the premises which he proposed to use. At this time, according to the defendant, there was no printing machinery or other printing equipment in the premises. The precise use to which his printing experience was to be put was never spelled out by Li Kwan but he was told that the advertising operation would begin at the beginning of November, meanwhile he was to perform the duties of caretaker, cleaning the premises and locking up at night and supervising the installation of lighting, etc.

16. He commenced these duties on the 21st September and he was paid $1500 as half a month's salary. On 7th October he was paid another $1500. A great deal of his time was occupied in reading newspapers and exercising with dumb-bells. Li Kwan seldom visited the premises. Although the matter was touched upon very obliquely in the evidence, it would appear that the defendant's account of the machinery and equipment was that most of it was there already when he commenced work on 21st September.

17. He told the court that early in October, on one or two occasions when he returned and opened the premises in the morning he noted signs of use and occupancy which led him to believe that some person or persons had been doing work of some kind during the night hours in his absence. He mentioned this to Li Kwon but was told not to pay any heed to it.

18. On 12th October Li Kwan brought two men to the premises, one of whom was introduced to him as Mr. Ho. These two men had several boxes containing toys and spoons and forks, and there was a discussion between them and Li Kwan concerning design and price. When he left that evening, Li Kwan and one of the men remained behind. The following morning he returned at 9 a.m. and he saw a pot containing same noodles and also some bowls, some canned food, a tooth brush and tooth paste. This caused him to look around more closely. He found a box on the same shelf where he had seen the tooth paste. He described this box as being similar in size and shape to the Graphic Arts box but unlike that box the colour was blue. He opened it and saw inside a number of things jumbled up together, including plastic sheets showing a U.S. dollar design. There were also some sheets bearing the graduated marks of a height scale. He suspected that the people who had left these things there had been engaged upon some unlawful process. In the course of inspecting the contents of the blue box the had handled positives and negatives of the banknotes.

19. On that day he saw Li Kwan and told him that he wanted to quit the job. His reasons for quitting were firstly that it was very boring and secondly that he suspected Li Kwan and his associates of illegal conduct. He did not mention having seen the positives and negatives because he had decided to quit. He was, however, persuaded to stay on until the end of the month. On the afternoon of that day he was given $20,000 by Li Kwan, with instructions to buy additional fluorescent tubes to be installed in the premises, and also air-conditioners, a filing cabinet and the sign-board showing the name of the printing company, Yat Sun. He agreed to this.

20. On the following day, the 15th, Li Kwan telephoned him at the premises and asked him to bring a brief case from the filing cabinet to the Kam Shing Teahouse in Tsuen Wan. He went there with the brief case and saw Li Kwan and Mr. Ho in each other's company at the tea house. He returned to the premises and in the afternoon the police arrived.

21. He insisted, in cross-examination, that he had only suspected that Li Kwan and the other men had been up to something illegal and he said that if he had been sure of it, he would have left at once. Neither in examination-in-chief or in cross-examination would he specify the exact nature of his suspicions and he said that so far as the height scales were concerned, he only realized that these could be used for making identity cards when the police told him this after his arrest.

22. The several grounds of appeal may be resolved into two principal contentions. Firstly, it is alleged that the Judge misdirected the jury on the law relating to the consitituents of these offences. Secondly, it is said that the summing-up as a whole was lacking in balance and was so strongly adverse to the defence as to amount to advocacy for the prosecution.

23. The first of these complaints takes the Judge to task for his failure, as it is said, to direct the jury on two vital distinctions: (a) the difference between suspicion and knowledge and (b) the difference between knowledge and intention in relation to custody and control of the articles which were said to be fit and intended for the purposes of forgery.

24. Undoubtedly the most damaging evidence resulted from the discovery of the defendant's finger prints upon two of the negatives. Both in his second statement to the police and in his evidence at the trial he accounted for these finger prints by saying that he had picked up each of the negatives and examined them when he discovered them in the blue box. It was to be inferred from his evidence that after he had replaced these objects in the "blue box", someone had, overnight, used them in some way which had terminated by their being separately put away in the two different containers in which the police had found them.

25. Dealing with this evidence and with the defendant's explanation, including his professed suspicions, the Judge said: "Ask yourselves, members of the jury, whether - having seen these items and having come to the conclusion that they were to be used in some illegal process - what illegal process could they have been used in other than forgery? It is a matter for you, members of the jury.

26. We do not think that Mr. Westbrook, who also represented the defendant at the trial, is right to interpret this as a direction to convict if the jury found that the applicant merely suspected and did not know that forgery was intended. Shortly after this direction, the Judge said: "Do you think that it" (i.e. the discovery of the suspect objects) "would lead inevitably to the conclusion that they were to be used in forging the items in these three charges?" There was therefore no equating of mere suspicion with knowledge. Nor do we think that there was any misdirection on the question of knowledge and its bearing on custody and control of the incriminating articles. After several helpful illustrations of the nature of custody and possession under the law the Judge said:

"If, on the other hand, he had not entered into any agreement with Mr. Li Kwan or Mr. Ho or anybody else to place these articles on the premises and to use them for the purposes of forgery, but had been merely employed as some sort of custodian of the premises, a watchman, and that he had found out subsequently either by being told that there were these articles on the premises, or by his own independent investigation, found that these articles were present, if he were thus to find out that they were there and he came to know their nature, he would then have the custody of these articles. He would not have possession of them, he would have the custody of them because he is a servant of those who possessed them."

27. Mr. Westbrook relies on the decisions of the English Court of Appeal in R. v. Rutter and White and R. v. Irala-prevost Brief reports of these cases appear in the Criminal Law Review for 1959 and 1965 respectively. These cases do not help him. They are, it is true, good authority for the proposition that mere knowledge of the existence and nature of dangerous drugs on the part of persons found in their vicinity is, without more, insufficient to constitute proof of possession or custody or control of them. In the present case there is admitted custody of the suspect items which continued after the alleged suspicion arose. It was left to the jury to decide whether the defendant knew that the things which he admitted to having seen were to be used in forging banknotes, identity cards and driving licences. Once the jury were satisfied that he knew that the premises which had been placed under his care contained articles which were, to his knowledge, fit for the purpose of forging various valuable things, they were entitled to conclude from the nature, number and disposition of those things and from the fact that the defendant had continued to remain in charge of the premises, that he was consenting to the use of the premises and their contents for the manufacture of forgeries and therefore had custody of all the implements of forgery intending that they should be so used. This conclusion was open to them even if they had formed the opinion that the applicant had taken no active part in the business of forgery but had simply turned a blind eye to what was going on.

28. Ultimately, on this point, Mr. Westbrook was compelled to argue that the jury should have been instructed to consider whether, even if they found that had stayed on as keeper of the premises knowing that forgery was intended, they must nevertheless be satisfied that he had not dissociated himself from that unlawful enterprise. That would have been necessary if such had been the defendant's evidence, but clearly it was not. What he asked them to believe was that he was not certain, but only suspected something illegal. The jury could not, without perversity, have found that there had been any such dissociation, since there was no evidence, even on the defendant's own story, that anything of the kind had occurred. In the absence of such evidence, the jury were left only with the defendant's professed suspicions. It is, as the Judge said, difficult to see what those suspicions could have been concerned with, if it was not forgery.

29. The other principal objection to these convictions, the subject of the remaining four grounds of appeal, is framed at its boldest in the final ground where it is contended that the summing-up amounted to another speech for the prosecution. It is a serious imputation and it requires serious consideration.

30. Mr. Westbrook has drawn our attention to no less than 13 passages which, taken together, he says, indicate a bias so pronounced as to have deprived his client of a fair trial. He does not say that any one of these things would by itself so damage the applicant's case, but he strongly submits that their accumulated weight had that effect.

31. It must be said at once that a number of these criticisms seem to the members of this court to be without any real substance. They point to nothing more than the tidying of loose ends in the prosecution case which, while no doubt indicative of the judge's impression of the strength of that case, could not be said to have intruded unduly upon the province of the jury. The jury mere clearly directed at the outset that the facts were for them to find and that the opinions of counsel or the judge were to receive no especial weight. At several points in the summing-up, the jury were warned to remember that the facts were their preserve.

32. There remain, nevertheless, several matters which are not so easily disposed of. In pursuing these, it will be convenient to retain counsel's numeration, leaving out those numbered items which we do not think merit serious attention.

No suggestion in precisely those terms was made in cross-examination or in the speeches of counsel. It is not a very serious objection but counsel relies on it as showing what he perceives as the judge's determination to put the prosecution case at its highest against his client and to omit a balancing of the picture by reference to the defendant's explanation, viz., that he was to be a kind of caretaker at least until the real work commenced at the beginning of November.

This point was taken up by the Judge but it was never made either by D.C. Kwan the constable in whose immediate custody the appellant was when the phone rang or by any of the other police officers who gave evidence. Indeed the whole tone of that evidence suggests that, to the contrary, the defendant was co-operating by endeavoring to get Li Kwan to come to the premises in Block J. Although the actual words used by the defendant were disputed, the detective constable's version "come quickly" or "you come back now", if those were the words used, do not seem to have been regarded by any of the police party as being a "tip-off" to Li Kwan, and immediately after the phone conversation D.C. Kwan was assigned to wait in ambush on the corridor of the 22nd floor, for the return of Li Kwan. This matter - favourable to the defendant - was not put to the jury. The accused's account was different from that of the police officer only to the extent that he said he had spoken to Li Kwan about the putting in of the new light fittings, and that he told Li Kwan that it would be best for him to come and have a look. Both versions contained an invitation for Li Kwan to come.

33. Defence counsel put this question to D.C. Kwan: "You are not suggesting that he tried to warn him off, tried to tell him not to come?" Answer: "I just told the defendant he could speak over the phone in the normal manner but he just could not tip-off." Shortly after that he agreed with counsel that the defendant had been very co-operative throughout the whole afternoon.

34. In the summing-up, at p.271 of the transcript, much is made of this incident. Dealing with the constable's version, the Judge said: "You might think, members of the jury, that if this was said and the person on the other end of the line were to think - had been involved in an innocent venture, he might say: "What? Why come immediately? Is the factory on fire or has something gone wrong?" The Crown says that this is indicative of the fact that a warning was received by Li Kwan on the other end of the line and that this is reinforced by the fact that he did not attend at the premises." He then told the jury that the two versions were entirely different and that it was a distinct contradiction which they must resolve. The defendant himself denied that he had used words such as: "Come back quickly" and it was, no doubt, the slant of the cross-examination at this point which led the Judge to comment as he did. It would however have been better if the Judge had reminded the jury that neither D.C. Kwan nor Inspector Roger, who was in charge of the party, said anything to suggest that they were displeased with the manner in which the appellant had answered the telephone, or that he appeared to them to be disobeying the instructions given to him by D.C. Kwan.

35. Points 5, 12 and 13 can conveniently be taken together since they each in some measure touch upon the second statement made by the defendant to the police. The Crown was explicitly making the case that the defendant had made this second statement to explain away the existence of the finger prints, particularly the finger print found upon the negative within the locked filing cabinet and he pointed out to the jury that this statement had been made shortly after the defendant had had a consultation with the solicitor's clerk.

36. Mr. Frank Wong, who appeared for the Crown also at the trial, concedes that he did not put the matter precisely like that to the jury, but he says that the implication of his cross-examination on the point was broadly to that effect. This cross-examination appears at p.206 and 207 of the transcript. At that point counsel clearly was probing the reason for the making of the second statement. The defendant's explanation was that the statement was made at the instance of Senior Inspector Young with whom he had been closeted on several occasions in the five days between the two statements. He said that it was Senior Inspector Yeung's idea that the information gathered by him in the course of these sessions should be reduced to writing. This explanation was not put to the jury, and at pages 258 and 259 of the transcript the summing-up deals with this statement in a series of paragraphs each commencing with the words "The Crown says" in which the suspicious character of the statement is strongly underlined. The jury should at least have been reminded that the defendant had said that in his consultation with the solicitor's clerk the only matter discussed was bail. Furthermore, it was never even suggested that it was in the course of such consultation that the appellant had been apprised of the fact that his finger prints had been found and would need to be accounted for.

37. It is true that D.C. Lee Bing-chuen, in answer to a leading question by counsel for the Crown, agreed that it was the defendant who had approached him in order to make this statement. The circumstances under which that happened are not described in that witness's evidence, a fact which was not drawn to the attention of the jury, and, perhaps most importantly, the jury were not reminded that the only officer who could have directly contradicted the defendant as to the genesis of this statement was Inspector Yeung - and he was never called.

38. Finally, there is the Judge's comment on an answer made by the defendant to the interrogating officer following upon the completion of the second statement. He was asked whether he knew the whereabouts of Li Kwan and the person named Ho. He answered: 'I wish to make reservation about this answer." The Judge invited the jury to consider whether that answer might support the Crown's contention that the accused was making a statement for the purpose of accounting for the finger prints found on the negatives since, as he put it, the defendant had all along been saying that he was trying to co-operate and to help the police ascertain the whereabouts of Li Kwan. He balanced this by asking them to consider whether the defendant's account of the matter might reasonably be true, viz., that he was formalising what he had been discussing with Inspector Yeung. This however did not deal with the explanation given by the defendant for that rather strange answer. What the defendant had said was that Inspector Yeung (who was not called) had told him not to speak about this "at random" in case the information given by him to Inspector Yeung should leak out and prevent the arrest of Li Kwan.

39. When all these matters are put together, however, we cannot say that there has been demonstrated a want of balance in the directions to the jury which must have unsettled the jury's view of the facts in such a way as to deprive the defendant of a fair trial. All that may be said is that the Judge showed somewhat more zeal in pursuing and highlighting points for the Crown than he did in respect of those for the defence.

40. Something else should be said, however. The formula "The Crown says" is well enough in any instance when it is clear that the point being put to the jury has plainly and unmistakably been made by the prosecution. But where, as at certain points in the present address, it was by no means clear that the prosacution were making such a point or, if they were, were making it much less emphatically than the Judge, the constant iteration of that phrase may of itself create an impression of a want of balance, an impression, no doubt contrary to the Judge's own belief and intention, that the scales have not been held quite fairly in weighing the evidence for the benefit of the jury.

41. The danger may be that the use of this phrase could have the effect of disguising that which in reality is a judge's comment and thus circumvent the warning given at the outset that the jury are entitled to ignore comments by the judge.

42. We have had occasion to stress this is same point recently in Hon Hoi-wah & another, Crim. App. 663 of 1981, a case in which, however, the general tenor of the directions came closer to the line of what may be objectionable than have the directions in the present case.

43. Mr Westbrook put the matter very strongly when he said the Judge had referred to the defence case only to comment adversely as it. That is not so. There is at least one point at which the Judge, in commenting upon the evidence, makes a point for the defence which was not made by counsel. Referring to the uneasy demeanour of the defendant as described by Inspector Roger, he asked the jury to consider the possibility that that might have been due to the fact that the defendant had on the day before discovered that something illegal was being done by other people, rather than that he himself was agility of some illegality.

44. There is a final respect in which the summing-up may be said to have been more favourable to the defence than it need have been. It is the only point of law raised in the appeal before us. Section 76(A) of the Crimes Ordinance reads as follows:

45. The Judge directed the jury that the legal presumption set up in the concluding two lines of that section would only arise against the defendant (a) if he knew that the articles in his custody were fit for use in forgery and (b) if he intended either by himself or in conjunction with other persons to use them for that purpose.

46. The difficulty we find in this section is caused by the phrase "fit and intended for use" in the third line of subsection one. It is readily understandable that the Crown must prove beyond reasonable doubt (a) that the accused was in custody or possession of the offending articles and (b) that those articles were fit for the purposes of forgery. These are both objective requirements to prove the latter of which testimony of an expert character will usually be admissible. But how is the Crown to prove that they are also intended for such use? If this is a subjective requirement proved, presumably by evidence from which the state of the accused's mind may be gathered. But if that evidence is available, what purpose is served by the presumption over and above the available evidence? And if this is not available, how can a presumption ever be raised?

47. The best answer, short of declaring the final words of the subsection otiose and ineffective, would seem to be that the test here also is an objective one. The jury, or the Judge as Judge of fact, will have to say whether, from all the circumstances surrounding the discovery of the suspect things, the only reasonable conclusion must be that they were not only fit for use in forgery but were intended so to be used although the evidence is not sufficient to show that the accused was personally intending to use them. Only so considered does it seem that the section can be said to secure the purpose, which the legislature evidently intended, of shifting the onus of proof to the accused.

48. This, we think, is the proper interpretation of section 76(A). It should be added that the onus once shifted will oblige the accused to show on the probabilities not only that he was not intending to use the suspect articles for forgery but that he was not aware that they were to be used for that purpose by anybody else.

49. For the reasons given the application must be refused.

50. The appellant received sentences of 8 years upon each of the three counts of possession of instruments fit and intended for use in forgery. In passing sentence, the Judge said: "Your actions therefore are not those of a printer who has legitimately set up a printing premises and to succumb to the momentary temptation to do some forging as a sideline. This was a deliberate, well-considered and well-planned offence." It is clear therefore that the sentences were immunized upon the basis that the jury's finding was to the effect that the applicant was equally involved as any of the other persons who plainly had set up a forgery factory in those premises.

51. Mr. Westbrook points out that there were two possible bases upon which the verdict of the jury could have been sustained, the alternative one being that he was, as he protested, a mere custodian of premises in which the illegal activity was going on. We think that is a substantial point. Both in Chow Chi-ming [1977] H.K.L.R. 466 and in Crim. App. 399 of 1980, the appellate courts took the view that where two possible views of the activities of an accused person were available, either of which was sufficient to sustain a conviction, the sentencing court should take the view most favourable to the defendant.

52. It must be stressed however that these were very serious offences. The introduction of the new section dealing with the forging of driving licences and identity cards is eloquent testimony to the seriousness with which the legislature viewed the growth of an industry for the production of these very valuable documents. We note that sentences imposed in previous cases involving either forgery or the possession of implements for forgery, would seem to point to a very rough average of 6 years for the most active type of participant in the offence. We have had regard, as Counsel for the Crown asks, to the record of this applicant which is a record of very serious criminal offences. Had he been a principal participant, that record coupled with the participation in offences involving the forging of three different types of valuable documents, sentences of 8 years would not have been excessive.

53. Reference was made to several cases in the High Court. In appeal case 123 of 1982 a sentence of 6 years imposed upon a finding of conspiracy to forge, was reduced upon appeal to 4 years. In that case the Judge had sentenced upon the basis that the appellant was a chief conspirator, whereas the evidence seemed to point to his having had a minor part in the operation for which he was to receive a very modest fee of about $200.

54. In High Court Case 84 of 1982 (this was not an appellate case) the proprietor of an operation to forge bank notes was sentenced to 5 .years'. imprisonment, a sentence which would seem to be somewhat light, in view of the very large quantity of completed forged notes which were found, amounting to a face value of about HK$5 million, with uncompleted notes to the value of about $4½ million. I mention that case as an indication that even in the matters so serious, the sentence was nevertheless one only of five years.

55. We think that in the present case the sentencing proceeded upon a wrong principle, that is to say, that the appellant was a principal conspirator with the others in forging or in possessing these implements. We therefore allow the application and treat the hearing of this as the hearing of the appeal. We set aside the sentences of 8 years imposed upon each count, and in substitution therefore we impose sentences of six years upon each count to run concurrently.

Representation:

S. Westbrook (D.L.A.) assigned for Appellant.

F. Wong, for respondent/Crown.