The Queen v. Chow Tin Wah

CACC000549/1989

Headnotes

On a charge of forging or uttering where the face value of the forged notes is substantial, six years is an appropriate starting point.

BETWEEN

Coram: Hon. Power, J.A., Macdougall, J.A. & O'Connor, J.

Date of Hearing: 26 July 1990

Date of Judgment: 26 July 1990

----------------

JUDGMENT

----------------

Power, J.A.:

1. The applicant was charged that on the 28th of March 1989 at Kowloon, without lawful authority or excuse, he had in his possession 15,763 pieces of forged banknotes, purporting to be Hong Kong and Shanghai Bank 1981 series $100 notes, knowing the same to be forged tie pleaded guilty to that charge and was sentenced by Barnes J. to imprisonment for 3 and a half years. He now appeals against that sentence.

2. The facts revealed that the offence came to light because his children, apparently without his Knowledge, were passing the notes when buying toy guns at the Wing On Department Store. The police first apprehended the children and then, having waited at his residence, apprehended him.

3. The facts, as recited to the trial judge, revealed that he made two cautioned statements. He admitted in the first that in the summer of 1982, an acquaintance YAM Siu-Wan approached him, offering to sell 25,000 $100 forged banknotes for the sum of $200,000. He counter-offered $90,000 which was accepted. The notes were contained in two sealed cardboard boxes which Yam assisted him to transport to his home. He claimed that he did not count the notes but did sort them into piles of those bearing the same serial numbers. He then tested the notes by uttering them at various markets with, he estimated, a 40% rejection rate. He estimated that he had uttered approximately 260 notes successfully. In his second cautioned statement he was asked to explain the discrepancy between the number of notes he claims to have uttered and the number remaining at his home, namely 15,763. He advanced the possibility of his having been shortchanged by Yam and of having received as few as 16,000 notes.

4. The grounds urged today by Mr. Laskey, who appears for the applicant, are that the sentence was manifestly excessive in that the trial judge did not or did not sufficiently take into account the plea of guilty, the willingness of the defendant to assist the police and the fact of the defendant's clear record. He also urges that sufficient consideration was not given to the fact that substantial quantity of notes had remained unused for a considerable length of time in the applicant's flat and that the notes were not of particularly high quality.

5. The first three matters, the plea, the willingness to assist the police and the defendant's clear record, unarguably fell to be considered by the sentencing judge. There is no doubt that he was perfectly well aware of them and did take them into consideration. Mr. Laskey, in the outcome, does not suggest that he did not do so but says he did not give sufficient weight to them and to the other two matters and that, given that three and a half years was imposed, he clearly took a wrong starting point. The real issue in this appeal is whether the judge took an appropriate starting point.

6. We have been referred to a number of cases of which three appear to us to be of relevance. They are The Queen v. NGAN Chun-yee (1984) Crim.App. No.137, The Queen v. KOO Pui (1985) Crim. App. No.469 and The Queen v. MO Chun-hung (1986) Crim. App. No.321. These cases, we are satisfied, indicate that on a charge of forging or uttering, a proper starting point, where the face value of the forged notes is substantial, is six years. Adopting that starting point and taking into account all of the matters that have been urged, we are satisfied that an appropriate sentence would have been that which was imposed - three and a half years.

7. In those circumstances we find no merit in the appeal and the application for leave is therefore dismissed.

Representation:

Mr. T.H. Casewell (Crown Prosecutor) for the Respondent.

Mr. Edward Laskey (D.L.A.) assigned for the Applicant.