The Queen v. She Kwok Fai and Others

1986, No. 577
(Criminal)

IN THE COURT OF APPEAL

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BETWEEN

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Coram: Hon. Yang, Hon. Silke, J.J.A. & Hon. Penlinton, J.

Date of hearing: 25^th February, 1987

Date of delivery of judgment : 25^th February, 1987

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JUDGMENT

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Penlington, J.:

1. These are applications for leave to appeal against sentences on charges of theft, forgery and uttering.

2. The 1^st applicant, (A1) who was the 1^st defendant in the Court below, faced three charges relating to events which occurred between August 1977 and July 1978. Those three charge were that first of all he stole some blank Post Office’s labels, secondly that he forged franked impressions on those labels and then he uttered the forged labels by selling them. As with all the applicants, it has been urged on us that in comparison with another defendant, LI Kam-chow, who received a suspended sentence, the sentences of two years passed on the 1^st applicant was manifestly excessive. Queen v. To Hung Lee & anr.¹ [1986] H.K.L.R. 1049 which approved that which was said in Stroud [1977] 65 Crim. App. Rep. 150 at 152, held that the only question, where the sentences are passed on a number of accused on the same occasion by the same judge, was whether the judge had properly apportioned the blame between the accused.

3. Here although Li Kam-chow was given a suspended sentence there were very substantial mitigating factors in his case which enabled the Judge to follow that course. While we agree that he does seem to have received a lenient sentence we do not consider it was such as would cause us to interfere.

4. It has however also been emphasized in respect of this applicant that whereas the trial judge in the District Court was only told that the applicant was willing to give evidence against others involved, the position now is that in fact he will give evidence very shortly in a trial involving a number of co-employees of the Post Office.

5. There is therefore a substantial mitigating factor before us which was not before the trial judge and we also take into account that the events with which he is charged occurred some eight to nine years ago. In the light of those factors, the application will be granted and the sentences will be reduced from two years to one year in respect of each charge, all sentences to be concurrent.

6. In respect of the 2^nd applicant, (A2) who was the 4^th defendant in the court below, he was in a more responsible position than the others in that he was a Postmaster, albeit of a small Post Office. Again it was alleged that, in comparison with LI Kam-chow, the sentences of a total of four years passed on him were excessive. We have already dealt with that submission in respect of A1.

7. What has however concerned as in respect of A2 is the fact that there were two serious of offences of the same sort, theft, forgery and uttering. However the 1^st set occurred in 1974/75 a very long time ago, and the only evidence in respect of those offences was the applicant’s own statement made when he was arrested in connection with the three other offences which occurred in 1985/86. We feel that taking into account those factors and also again the fact he also will be giving evidence that the sentence should all be concurrent.

8. In respect of the 3^rd applicant, (A3), the thirteenth defendant in the Court below, he faced only one charge, that of blackmail. Again the events took place in 1978, some eight to nine years ago. D3, then a Postman saw A1, forging labels and demanded $30,000 as the price of his silence. He was paid $25,000. He was at the time in severe financial difficulties. There was only one offence and clearly while he was in a position to either repeat the offence or to have requested to be brought into the forgery syndicate which was then operating. He did not do so. Again we also now know for sure that he will give evidence whereas in the Court below, it was only said that was willing and might do so. Again taking those factors into account, we feel that the sentence of two years imprisonment can be reduced to one of nine months imprisonment.

9. The applications therefore will be allowed. We treat these applications as the hearing of the appeals and the sentences will be reduced accordingly.

Mr A. Bell (John Ku, Tam & Ho) for D1

Mr A.J.J Sanguinetti & Cheng Huan (T.N. Hon. & Co.) for D4

Mr M. Ford (D.L.A.) for D13