HKSAR v. Lam Wai Ming

CACC 44/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 44 OF 2004

(ON APPEAL FROM DCCC NO. 949 of 2003)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Stock JA

Date of Hearing: 26 October 2006

Date of Judgment: 26 October 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.On 20 January 2004, the appellant was sentenced to 4 years and 6 months’ imprisonment following his conviction after trial in the District Court on a charge of having in his custody or under his control with intent, on 17 July 2003, 530 counterfeit $100 banknotes, contrary to section 100(1) of the Crimes Ordinance, Cap. 200.  His applications for leave to appeal against conviction and sentence were dismissed by this court on 30 September 2004 for reasons which were handed down on 13 October 2004.  This was followed by an application to the Court of Final Appeal for leave to appeal against conviction which was refused on 15 December 2004.

2.The case has now been referred back to this court following a petition to the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221, the relevant provision of which is as follows:

“(1)    Where a person has been convicted on indictment … the Chief Executive may, if he thinks fit, at any time either-

(a)    refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; …

……

(3)     For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”

3.The ground of appeal advanced by Mr Caesar Lo, on the appellant’s behalf, is that the trial judge “wrongly enhanced” sentence when there was “insufficient evidence” to prove that the offence which the appellant had committed was “prevalent” under the terms of section 27 of the Organized and Serious Crimes Ordinance, Cap. 455 (“OSCO”).

4.The prosecution had applied on 20 January 2004, pursuant to a notice under section 27(2) and (11) of OSCO for enhancement of sentence on the ground of the prevalence of offences in relation to inkjet printed counterfeit banknotes.  For present purposes, an offence brought under section 100(1) of the Crimes Ordinance is, by virtue of Schedule 1 paragraph 11 of OSCO, a ‘specified’ offence which enabled the judge, if he saw fit to do so, to enhance the sentence.  In the event, the sentence imposed on the appellant included an enhancement by fifty percent following the guidance issued by this court in HKSAR v Yip Kwok-fai, CACC 306/2002.

5.The prosecution had been able to establish ‘prevalence’ based upon the information set out in three statements made by Chief Inspector Yu Shi-cheung which were agreed by the defence and read to the judge under the provisions of section 65B of the Criminal Procedure Ordinance.  However, the basis on which this was established has subsequently been criticised and has led to the present proceedings.

6.Almost two years later, it was held in HKSAR v Chan Ka-kin and Anor, CACC 474/2004, when granting leave and allowing the appeals against sentence, that:

“99.   In determining the prevalence or otherwise of the specified offence, what should be considered is the substance of the offence. It is the prevalence of the conduct constituting the specified offence that we are concerned with. 

100.   Whilst the prosecution need not prove prevalence in terms of the numbers of the offences contrary to a particular statutory provision, which is a specified offence, the prosecution must prove beyond reasonable doubt the prevalence of the conduct constituting the specified offence before s 27 of OSCO is triggered.

101.   Chan was charged with offences contrary to ss 100(1) and 101(1) of the Crimes Ordinance and the substance of the allegation was that he had in his custody or control, counterfeit banknotes printed with colour inkjet printers with intent to pass them as genuine, and materials and implements to make such counterfeit notes again with intent to pass them as genuine. (Emphasis added)

102.   However, Chief Inspector Yu’s evidence only referred to the number of seized counterfeit banknotes manufactured with colour inkjet printers. Such evidence was also consistent with the prevalence of the conduct constituting offences under s 100(2) and s 101(2) of the Crimes Ordinance – offences that do not require the element of ‘with intent to pass them as genuine’.

103.   Ss 100(2) and 101(2) are of course not specified offences under OSCO. Indeed, even s 101(1) is not a specified offence at all.

104.   On Chief Inspector Yu’s evidence, the judge was not entitled to conclude that the specified offence, namely the custody and control of counterfeit banknotes with intent to pass them as genuine was prevalent. The judge’s conclusion that the 2^nd charge was a specified offence was simply wrong.

105.   Mr Michael Poll, counsel for the respondent, fairly conceded this point. He, however, properly referred us to HKSAR v Yip Kwok-Fai, unreported, CACC 306 of 2002, in which the Court of Appeal appeared to have simply relied on the evidence that the number of counterfeit $10 coins had risen significantly to justify the conclusion that the offence of having custody or control of counterfeit coins with intent, contrary to s 100(1) of the Crimes Ordinance, was prevalent.

106.   We would only comment that the applicant in Yip Kwok-Fai was not legally represented and the point in issue was not argued or considered.

107.   Offences involving counterfeit banknotes and offences involving false passport are extremely serious offences. Chan committed both types of offences and there was hardly any mitigating factor. The sentences imposed on Chan must reflect those aggravating factors.

108.   However, we were not persuaded that the judge was right to enhance the sentences on the 1^st and 2^nd charges under s 27 of OSCO at all.

109.   The 2^nd charge was not a specified offence. The evidence adduced by the prosecution did not prove beyond reasonable doubt that the 1^st charge was prevalent either. In the circumstances, the judge’s order, enhancing Chan and Lai’s sentences on the 1^st and 2^nd charges, must be set aside.

110.   Whilst the 4-year concurrent sentences on the 1^st and 2^nd charges and the 12 months and 2 years’ concurrent sentences on the 3^rd and 4^th charges with 14 months to run consecutively to the 4 years remain, we set aside the enhanced 16 months’ consecutive sentence on the 1^st and 2^nd charges.”

7.It was as a result of that decision, adopted in HKSAR v Chen Zhu-shan [2006] 3 HKLRD [H8], that this matter was made the subject of a petition to the Chief Executive.

8.We pause to make two remarks.  The first is to correct a suggestion made today in argument.  The decision in Chan Ka-kin and Anor did not represent a change in an understanding of the law.  It merely pointed out that which had been overlooked in practice that, if it was proposed by the prosecutor to prove the prevalence of offences under section 100(1) of the Crimes Ordinance, the evidence produced to that end had to relate to that offence to the exclusion of others of a similar kind.  The second point, which we are grateful to Mr Goodman for drawing to our attention, is that the statement at paragraphs 103 and 109 of that judgment that section 101(1) and (2) were not specified offences was, with respect, an oversight because the offences in section 101(1) and (2), are rendered ‘specified’ offences by reason of schedule 2, paragraph 8, of OSCO.

9.For present purposes, it was conceded that the statistics which were placed before the sentencing judge did not specifically relate to the prevalence of offences which had been committed contrary to section 100(1) of the Crimes Ordinance.  This is apparent from the way Lugar-Mawson J set the matter out when giving the judgment of this court and dismissing the appellant’s original application for leave to appeal.  He stated as follows:

“26.   The statistics provided to the Judge showed that in 2003 a total of 15,719 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized in Hong Kong, 11,650 of that total were counterfeit $100 banknotes.  In 2002, the figures show that a total of 19,396 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized, of which 14,125 were counterfeit $100 banknotes.  The statistics also show that in 2003, 15 persons were prosecuted for offences relating to counterfeit $100 banknotes, whereas only 7 persons were prosecuted in 2002.  The 1999 figure was 3 persons and it was only in the year 2000 that the number of persons prosecuted – 14, approached the 2003 figure.  The Chief Inspector’s statistics also showed that in 2003 there was a rising trend in the number of counterfeit $100 banknotes produced on colour inkjet printers.  The counterfeit banknotes involved in this case were produced by this method.  In January 2003, 462 counterfeit banknotes so produced were seized; by December the monthly seizure figure had risen to 1,695 counterfeit banknotes.

27.     It is true, when the 2003-2002 figures are compared together, that in 2003 there was a drop in total numbers of counterfeit banknotes seized.  However, when those figures are compared with the 1999 figures of a total number of counterfeit banknotes of 6,519 and counterfeit $100 banknotes of 2,032, as well as with the figures for the number of persons prosecuted for offences relating to counterfeit $100 banknotes, and the figures showing a rising trend in the number of counterfeit $100 banknotes produced on colour inkjet printers, the Judge’s conclusion at the time of the Applicant’s sentencing that offences relating to counterfeit banknotes were prevalent in Hong Kong was an inescapable one.  Clearly there remained a need to invoke the provisions of the Organised and Serious Crimes Ordinance to deter others from committing such offences.”

10.In the light of the Court of Appeal’s decisions in Chan Ka-kin and Anor and in Chen Zhu-shan (above), Mr Goodman sought to adduce fresh evidence under the provisions of section 83V of the Criminal Procedure Ordinance with a view to showing that although the original application for enhancement was advanced upon a basis which has since been disapproved, nevertheless if all the statistics which could have been placed before the trial judge had been provided in proper form, the picture would still have revealed that this was a prevalent offence.

11.In short, Mr Goodman’s submission was that the affirmations and statement now provided by Chief Inspector Yu demonstrate, from statistics which have been updated, that in view of the number of persons prosecuted and the number of counterfeit banknotes involved in relation to offences brought under section 100(1) of the Crimes Ordinance, offences of this kind were prevalent.  The figures he gave us taken from Chief Inspector Yu’s statement dated 29 June 2006 are that for the year 1999, 141 counterfeit banknotes were involved and 5 persons were prosecuted; in 2000, 25 persons were prosecuted involving 8,149 counterfeit notes; in 2001, the figures dropped to 5 persons prosecuted and 220 counterfeit notes; in 2002, 9 were prosecuted and 766 counterfeit notes were involved; and in 2003, there were 1,122 counterfeit banknotes (including those in this case) and 16 persons were prosecuted.  These figures are in stark contrast to those which were set out by Lugar-Mawson J (above at para. 9) as having been placed by agreement before the sentencing judge.

12.The application to adduce fresh evidence was opposed by Mr Lo who submitted that it was the prosecution’s duty at the time of sentencing to provide the court with sufficient and cogent evidence of prevalence.  By failing to distinguish between figures relating to counterfeit banknotes which arose from specified offences as opposed to other offences which were not specified, he contended that it was too late to rely on figures which only now reflected the true position.

13.Section 83V(1) of the Criminal Procedure Ordinance provides as follows:

“For the purposes of this part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice –

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection(3), receive the evidence, if tendered, if any witness.”

14.We have considered the evidence which the respondent has sought to adduce de bene esse.  In all the circumstances, we consider that it is in the interests of justice that the evidence should be admitted.  To find otherwise, in our view, would be to exclude relevant and admissible evidence which goes to the heart of the decision we have to make.

15.We are not satisfied, however, that the evidence, now properly produced, has established that the offence for which the appellant was sentenced, namely the ‘specified’ offence brought under section 100(1) of having counterfeit banknotes in his custody or under his control with intent, was prevalent.  Accordingly, as the appellant’s sentence was enhanced on a mistaken factual basis, the appeal is allowed.  The sentence, therefore, is reduced to 3 years’ imprisonment to remove the element of enhancement.

Mr Graham D Goodman, SGC, of the Department of Justice, for the Respondent.

Mr Caesar Lo Chi Lam, instructed by Messrs Clarence Wong, Cheung & Liu, assigned by Director of Legal Aid, for the Appellant.