HKSAR v. Ho Wan Chung, Alan
Read the full judgment text of CACC 374/2003 on BabelCite. This Court of Appeal judgment was delivered on 24 November 2006.
1. This is an application for leave to appeal against sentence. The applicant was convicted of six offences in the District Court in July 2003 after trial before Deputy Judge Chainrai. He was sentenced to a total term of seven years’ imprisonment.
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CACC 374/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 374 OF 2003 (ON APPEAL FROM DCCC NO. 186 OF 2003) ---------------------- BETWEEN
______________ Before : Hon Stock JA and Burrell J in Court Date of Hearing : 24 November 2006 Date of Judgment : 24 November 2006 ---------------------- J U D G M E N T --------------------- Hon Stock JA (giving the judgment of the Court): 1.This is an application for leave to appeal against sentence. The applicant was convicted of six offences in the District Court in July 2003 after trial before Deputy Judge Chainrai. He was sentenced to a total term of seven years’ imprisonment. 2.We take the facts from a helpful summary provided by Mr Shiu. The applicant rented premises in Fu Lee Loy Mansion in North Point. Because he was in arrears with his rent, his landlords entered the premises on 15 July 2002 and as a result of what was there found the police were called. What was discovered was a rucksack containing acknowledgments of identity card applications in the name of eleven different persons. These acknowledgements have a practical use, for when issued they are substitutes for Hong Kong identity cards. These facts gave rise to the first charge, namely, possession of false instruments intending that they be used to induce someone to accept them as genuine, contrary to section 75(1) of the Crimes Ordinance, Cap. 200. 3.The police also found in those premises equipment for making false Hong Kong permanent identity cards as well as false acknowledgements of applications for identity cards. There was found a computer, four Zip discs, printouts for identity cards as well as the back page of thirty nine acknowledgements. In the Zip discs were a large number of passport type photographs of individuals, described by the judge as templates for acknowledgements. This find gave rise to the second charge, namely possession of equipment for making false instruments contrary to section 76(1) of the Crimes Ordinance, the allegation being that such instruments would be used to produce documents that would induce others to treat these instruments as genuine. 4.The second and sixth charges related to a similar find on the 22 August 2002 at other premises used by the applicant, premises at Tung On Building in Shau Kei Wan Road. Emerging from those premises the applicant was apprehended and he was carrying a plastic bag inside which were a number of acknowledgements of identity card applications. In the applicant’s possession, on his person and elsewhere, were sixteen acknowledgements of identity card applications as well as a false driving licence and a false motor vehicle licence, and all these led to the third charge which was another charge of possession of false instruments that would be used as genuine, contrary to section 75(1) of the Crimes Ordinance. At these premises was also found more equipment for making false documents: another computer, two Zip discs, eighteen colour printouts of a Hong Kong identity card; and this was the subject of the sixth charge, another charge of the possession of equipment for making false instruments, namely, identity cards, acknowledgements of applications, driving licence, motor vehicle licence, with the intention that they be passed off as genuine. 5.It was an admitted fact that a vehicle found parked close to those premises, a Mercedes Benz, was a vehicle that had been stolen by two men using a revolver-like object. The value of that vehicle was $298,000. The applicant was found in possession of the keys to the vehicle. Charge 4 alleged that the applicant dishonestly received stolen goods, namely, that vehicle, knowing or believing it to be stolen, contrary to section 24 of the Theft Ordinance, Cap. 210. 6.When the applicant was apprehended there was found in his rucksack an imitation model 357 plastic revolver with some rounds. Charge 5 alleged possession of the imitation firearm, contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238. 7.At the dates of these offences, the applicant was aged 41 years. He has a previous conviction but a very long time ago, a matter that may properly be, and was, ignored for sentencing purposes in this case. These particular offences were all committed by the applicant when on bail for other alleged offences, a fact that was not used in aggravation of sentence, no doubt because the applicant by the time of sentence for these offences had been acquitted of the earlier offences for which he had been on bail. 8.The judge sentenced the applicant as follows:
That made a total of seven years’ imprisonment. 9.The first ground of appeal was that the totality was excessive but, realistically, has not been pursued by Mr Chung. We would nonetheless make two remarks in relation to the actual terms imposed. It is not clear to us from the sentencing remarks whether the individual terms imposed were reduced from any given starting point to take account of certain mitigating factors placed before the court below. The judge merely stated that the mitigation was not of much weight; and she did not articulate any starting point for the sentences. Such an approach causes some difficulty for an Appeal Court, and the safest course for us is to look at the sentences on the assumption that they represent the starting and finishing points employed by the judge and then look afresh at the mitigation. 10.Our second remark is that the sentence imposed in respect of handling the stolen vehicle was in our judgment too light, as was, given its very realistic appearance, the sentence for possession of the imitation firearm. 11.Our attention has been drawn to a number of matters in mitigation, one of which was mentioned to the judge, others not. In the light of these matters, we take the view that a deduction of nine months is called for from the totality imposed, a deduction that results in a total of six years and three months’ imprisonment. We will accordingly grant leave to appeal against sentence and treating the hearing of this application as the appeal, we allow the appeal to the following extent only: that the sentences on Charges 4 and 5 shall run concurrently to each other as before but that three months will run consecutively to the rest, the remainder to run concurrently to the rest, resulting as we say in a total of six years and three months’ imprisonment.
Mr Gavin Shiu, SADPP of Department of Justice for the Respondent Mr Hylas Chung instructed by Messrs Quan & Co., assigned by D.L.A. for the Applicant |
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