The Queen v. Liu Chun Fai

IN THE COURT OF APPEAL

1987, No 180
(Criminal)

BETWEEN

THE QUEEN

and

LIU CHUN-FAI

_________________

Coram: Hon. Cons; V.-P., Fuad & Hunter JJ.A.

Date of Hearing: 4th June 1987

Date of Judgment: 4th June 1987

_________________

J U D G M E N T

_________________

Hunter, J.A.

1. This is the judgment of the court.

2. On the 24th March of this year the applicant LIU Chun-fai was found guilty by a jury, after trial before Deputy Judge Daniell of one count of uttering 478 forged documents each purporting to be a one-thousand Hong Kong Dollar banknote issued by the Hong Kong and Shanghai Banking Corporation knowing the same to bi forged and with intent to defraud.

3. The facts which emerged at the trial can be summarised in this way. In about June of 1986, the applicant became acquainted with a man who uses the nickname Ah Pang. Ah Pang had available for disposal a substantial quantity of forged thousand dollar notes. According to the applicant's statement to the police his first attempted commercial transaction in the marketing of these notes was to offer them to a man, whom we wil1 simply describe by the initial T. T was eventually not interested and no transaction was completed. The next person he admits offering notes to was a man whom we will call L. It transpires that L was a police informer. L in due course introduced the applicant to a man then using the name Ah Wai but who was in fact an undercover police officer. That event took place early in September.

4. There were then a number of discussions between this applicant and Ah Wai with a view to the purchase by Ah Wai of counterfeit notes. Arguments about quantities and price seem to have been resolved in that the quantity was fixed at 500 notes, and the price at $250 per piece. After further discussions a completion meeting was set. up for the 17th September, the date named in the indictment, in a coffee shop in Kowloon, with both the applicant and Ah Pang. That meeting took place. Both those persons attended, together with Ah Wai and another undercover officer who emerged for the first time at that meeting. Ah Wai went off with Ah Pang to pick up the notes. As soon as Ah Pang produced 478 forged notes he was arrested by Ah Wai. Later this applicant was arrested at the coffee house where he was still waiting.

5. As we have said the applicant was convicted by the jury after trial. Although he made a long statement to the police, part of which we have already referred to and which might have been regarded as confession of the offence, he chose to run the defence of being the innocent dealer at the trial; dealing in antique notes but not forgeries, and asserting that he was not aware that the notes were forgeries. That defence was plainly not believed by the jury. The judge sentenced him to a term of seven years' imprisonment. By this application he seeks leave to appeal against that sentence.

6. The first matter urged in support of the appeal is that the trial judge was wrong in saying that he played a prominent role in this transaction. We cannot see any substance in that criticism at all. It is true that this applicant was not on the evidence in anyway concerned with the actual forging of the notes. But marketing is a very important function in the process of dealing in or disposing of forged banknotes, and he was an active participant in the marketing on his own confession to the police. Indeed, he was in this deal with a 40% interest. On the figures he gave to the police, 60% of the proceeds were to be taken by Ah Pang and 40% by him.

7. The next point which is relied upon as a ground of appeal is that the trial judge failed to consider adequately or at all the role of police entrapment. The trial judge can in fact hardly be criticized for that because no submissions were made to that effect before him at all. But it is a point which has been strenuously urged upon us by Mr. Hoosen for the Applicant in this Court.

8. We think it is important to see exactly what entrapment means in circumstances like this. For that purpose it is natural to go to Reg. v. Sang[1] where the whole of the concept of entrapment was exhaustively considered first by the Court of Appeal an4 then by the House of Lords. The result was that they held that the defence of entrapment does not exist and never has existed in English law. In reaching that conclusion their Lordships, with one possible exception, all acknowledged that entrapment was a relevant factor which could go in mitigation of sentence. The matter is dealt with by Lord Diplock at page 432, Lord Salmon at page 443, Lord Fraser at page 446 and Lord Scarman at page 451. But it is important, we think, to see the authorities which their Lordships cited with approval as being true cases of entrapment and which resulted in some mitigation of penalty. The principle can be illustrated by reference to two cases only.

9. The first is Browning v. J.W.H. Watson (Rochester) Ltd.[2] . In that case a coach proprietor was prosecuted for a licensing offence, an offence which was in fact created by the traffic examiners themselves.

10. It happened in this way. The coach proprietor thought he was simply transporting members of a football club. If in fact he had only had members of a football club in his coach, no offence would have been committed. But in Lord Goddard's words the two examiners “insinuated themselves” onto his coach before departure. The Justices took the view that he was not to be held responsible for this, and quitted him. The Divisiona1 Court said “no”, it was an absolute, offence. The case was sent back to the Justices with the direction that the offence was proved but with the broadest hint that an absolute discharge might be an appropriate penalty. That was a classic example of a case where the presence of the investigators had in fact created the offence itself.

11. Another case much relied upon in the House of Lords was Reg. v. Birtles[3] where Lord Parker gave the judgment of the Court of Appeal in England. The court mitigated the penalty in that case because it was far from sure that the offence committed there had not been incited both by a police informer and by a police officer. The essence of the decision, we think, can be found in these words used by Lord Parker at page 1049:-

“… it is vitally important to ensure so far as possible that the informer does not create an offence, that is to say, incite others to commit an offence which those others would not otherwise have commited.”

12. The distinction between incitement which is true entrapment, and simply proper police investigation was most clearly pointed by Lord Salmon in his speech in Reg. v. Sang[4], at page 443 where he says this:-

"It is only fair to observe that in the present case there was not a shred of evidence that the police sergeant was an agent provocateur. Even if he had been told by an informer that the accused was a hardened dealer in forged bank notes, it would, I think, have been his duty to carry out a test to discover whether this information was correct, which events show that it obviously was. No doubt, the accused would not have committed the crime of trying to sell forged bank notes to the police had he known it was the police. There can, however, be little doubt that he would have tried to sell the forged notes to anyone else whom he 'considered safe.' "

It is perfectly plain from that quotation, that Lord Salmon did not regard that sort of conduct as police entrapment at all. It was simply proper and necessary police investigation. By contrast the goes on in the next paragraph to distinguish what he described as: "I hope, the unusual case in which a dishonest policeman, anxious to improve his detection record, tries very hard with a help of an agent provocateur to induce a young man with no criminal tendencies to commit a serious crime and ultimately the young man reluctantly succumbs to the inducement."

13. The same distinction equally merges in the judgment of Roskill L.J. in the Court of Appeal. On page 421 of the same report he defines entrapment in these words:-

“(it) means no more than that a person has been induced by an informer or a police officer to commit a crime which would not otherwise have been committed, ……”

He likewise adopted, pages 416 and 422, the judgment of Lord MacDermott C.J. in R. v. Murphy[5] where he said this:-

“Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection; but as a method it is as old as the constable in plain clothes and, regrettable though the fact may be, the day has not yet come when it would be safe to say that law and order could always be enfored and the public safety protected without occasional resort to it. We find that conclusion hard to avoid on any survey of the preventive and enforcement functions of the police, …”

So there is a fundamental distinction between police incitement which results in the commission of the offence or perhaps a more serious offence; and undercover police investigation which may be absolutely essential in certain types of crime if the police are to do their work properly. It is not, we think, pure chance that this question has arisen in a number of forgery cases, where the police have used undercover methods to detect those they suspect of uttering forged documents.

14. The sale to the police officer in this case would not have taken place if the police officer had not been there. It would not have taken place if the man knew he was a police officer. But the real question is whether it would have taken place to somebody else if it had not taken place to this police officer. One only has to read this applicant's confession to come readily to the conclusion that if the sale had not taken place to this police officer it would almost certainly have taken place to somebody else. So this case falls four square within the first example given by Lord Salmon in Reg. v. Sang. We conclude therefore that there is no substance in the suggestion that the police conduct here constituted entrapment. Therefore their conduct was not a mitigating factor as far as this applicant is concerned.

15. The next ground of appeal is that the learned judge erred in presuming that the forged notes would have been put into circulation in any event. This was no more than the judge reaching the same conclusion as this court has reached that this sale, if it had not taken place to this police officer, would have taken place to somebody else. It was then said that the trial judge failed to give sufficient or any credit for the appellant's previous good character. That was a matter plainly before him and we have no good reason for believing that this was a factor he did not take into account.

16. Therefore, the final question is: is this sentence of 7 years' imprisonment manifestly excessive or not? There have been certain guideline cases in this court in recent years. The first is the case of NGAN Chun-yee[6], where in reducing the sentences imposed in that case, the Chief Justice said that for the future sentences in the order of 6 years would not be interfered with in this type of offence.

17. That matter was again considered by this court in the case of KOO Pui[7] . There in delivering judgment on an application for appeal against sentence Mr. Justice Li. V.-P. having cited from the decision in NGAN Chun-yee went on in these words:-

“Having regard to these cases we are of the opinion that in the case of uttering forged bank notes, particularly one of the magnitude of this present case, a participant would not be justified in saying that a sentence of six to seven years was manifestly excessive on conviction after trial.”

On the question of magnitude there is surprising similarity, between the amount of the notes in KOO Pui and the notes here. The only difference is the notes in KOO Pui were US dollar notes, not Hong Kong banknotes. It seems to us that the Hong Kong currency is no less deserving of protection than the US currency in a Hong Kong court. In these circumstances we are of the opinion that when 478 forged $1,000 notes are intended to be put into circulation to the discomfort of any person into whose possession they might come, it is not possible to say that a sentence of 7 years' imprisonment is manifestly excessive. This application is dismissed.

A.A. Hoosen (M/S Ada Y.M. Chan & Co.) for the Applicant.

G.J.X. McCoy, Senior Crown Counsel for the Respondent.

[1]  [1980] A.C. 402

[2]  [1969] 1 W.L.R. 1047

[3]  [1969] 1 W.L.R. 1047

[4]  (1980) A.C. 402

[5]  (1965) W.l. 138

[6]  (1984) Cr. App. 137

[7]  Cr. App. No. 469 of 1985