HKSAR v. Mo Shiu Shing

CACC000006A/1998

CACC6/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 6 OF 1998

(ON APPEAL FROM HCCC 237 OF 1992)

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Coram: Power, Ag. Chief Judge, H.C., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 19 March 1999

Date of Judgment: 19 March 1999

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. The facts of this case are outlined in the application relating to conviction which is reported at (1999) 1 HKC 43.

2. The Applicant now seeks leave out of time to appeal against sentence on the sole ground that the total sentence of 7 1/2 years' imprisonment was manifestly excessive or wrong in principle.

3. The reasons given in the Applicant's affirmation for being out of time are far from satisfactory but, in view of the eloquent submissions on the merits of the application which Mr. Grounds has advanced, we have nevertheless been prepared to give leave to hear the matter argued out of time.

4. In passing sentence, Stock J. went to great lengths to set out his reasons for the term he imposed which occupy more than 7 closely typed pages in the transcript between pages 107and 114 of the appeal bundle. This is in no sense said as a criticism. The sentencing exercise was by no means straightforward. In particular, so far as it is relevant to this application, the Applicant had absconded for a number of years. In the interim, his co-defendants had been dealt with by another judge and their position had to be contrasted to the Applicant's. Statutory changes had also brought about a reduction in the maximum sentences for some of the offences of which the Applicant was convicted.

5. The judge took a serious view of the facts of this case and of the role played by the Applicant. At page 108M the judge said this:

"The basis upon which I view the facts for the purposes of sentence is this, and it is a basis which accords with the verdict and the credible evidence which emerged. This flat was used during the months in question as a currency production centre. Where and with whom the operation originated is difficult to say.

I cannot rely for one moment upon the evidence of Fong Mau-ching (DW2), for a less truthful witness, I do not think I have ever heard or seen, and I say that advisedly. It seems likely, given that there was a significant quantity of renminbi which this machine in the flat was producing, and given the terms of the statements which the Applicant gave to the police originally that there was a mainland connection or origin for this operation.

It is said by Mr. Gerber that the counterfeit productions are very bad, viewed not from the vantage point of an expert, but from the point of view of the lay recipient. Whilst they are not highly sophisticated forgeries, I would not call them bad. I think the ordinary recipient might very well be fooled by them as no doubt was intended."

6. Pausing there, we have had the advantage of having seen the banknotes today in court and we feel bound to agree with the sentence expressed by the judge. They may not have been highly sophisticated copies, such as are encountered in some cases, but these were perhaps sufficient to fool people if they were not alerted to their existence as forgeries.

7. The judge carried on at page 109F:

"This was neither the most sophisticated operation nor was it amateurish.

Fong Mau-ching (DW2) was himself a printer's technician and knew what he was about. The scale of the operation is not one about which one can be precise. The operation had been in progress since mid/late September 1990, or at the latest, since mid-October 1990. The machine itself had made over 10,000 copies by the time of your arrest, but it must be remembered that each sheet copied would make more than one note.

Each of the sheets I have seen bears three notes. In the safe deposit box, the notes were HK$1,000 each, a total of $800,000 worth face value in the safe deposit box alone, and there is no doubt but that those notes came from the production line in the flat. There were US dollar forged notes in the safe deposit box, too, and there were renminbi in the order of $75,000 renminbi worth face value in the flat."

8. The judge then continued:

"There is no question but that it was intended to circulate these notes ..... This was an ongoing business to which, as the jury found, (the applicant) was an active party.

However, quite what your role was in the matter is one about which I cannot be certain. This was your flat as much as it was your wife's. I do not believe that you absented yourself from your household to the degree that you have suggested.

I do not believe that Fong Mau-ching, much younger than you and earning little at his job, or your wife, who was not working at all, provided the funds necessary to finance the operation. You were then a businessman, and one is bound to suspect that you were providing finance for this operation either on your own, or more likely, in conjunction with others in Hong Kong and/or on the mainland.

But since I cannot determine what your precise role was, I shall not treat you as the prime mover. Whatever your precise role, you were, I'm sure, entirely involved in it. Your fingerprints were found on notes in the flat, and in the safe deposit box, and notes found in your own briefcase in your room.

There is no question but that this operation had been continuing since October, and had the police not come upon it in March, it would have continued from your premises."

9. Mr. Grounds has submitted that the starting points which the judge in due course took were too high. He argued that a proper starting point would have been six or seven years, added to which the Applicant should then have been accorded the same discount of approximately 17% which the judge gave when reducing the sentences on counts 1 and 4 from nine years to 7 1/2 years on each. These were the offences of forgery of banknotes and possession of implements for forgery respectively. On the second count, the possession of forged banknotes, the six years starting point was reduced to five years.

10. Mr. Grounds has very helpfully drawn a number of cases to our attention, which illustrate that sentences in the region of six years are often appropriate for distributors of forged banknotes. There are, however, no guideline cases as such for distributors or forgers. The closest we came to finding assistance in this respect was from the judgment of Power J.A.(as he then as) in R v Suchai Pruksachattaworn, Criminal Appeal No.316 of 1990 (unreported), which was a case where the possession of forged United States travellers cheques valued over HK$1,000,000 was involved. At page 4 in the judgment, the court said:

".......... the possession involved, on the admission of the defendant, the passing of some notes which was, no doubt, why the court indicated that six years, the appropriate sentence for uttering, was a proper starting point when dealing with the offence as charged. We think it timely to indicate that while six to seven years has been indicated as a proper starting point for forgery and uttering where substantial amounts are involved, it is our view that, where very large amounts of impeccable forgeries produced by sophisticated means are involved, substantially higher sentences might well be in order.

The real question for this court is whether five years was a proper starting point where the possession was that of, in effect, a courier who was not involved in anything other than the transporting of the forged instruments. Forgeries such as this not infrequently pass from hand to hand before eventually being foisted upon an innocent member of the public. Every person in such a chain must be aware that the eventual aim is to work a substantial fraud upon an innocent party. We are quite satisfied that five years was a proper starting point."

11. We have seen that substantially higher sentences were approved in R v Yip Moon-kwan and others, Cr. App. 220 and 210 of 1994, where a sophisticated conspiracy to make counterfeit currency was charged and 13 years' imprisonment was taken as an appropriate starting point.

12. The present case was in a medium range of seriousness. It lacked the sophistication of Yip Moon-kwan's case but, as has already been said, we have had the advantage of seeing the banknotes which emerged from the Applicant's premises. These were quite clearly capable of passing as genuine unless carefully inspected.

13. We feel bound to say that the starting point of nine years' imprisonment was at the top end of the range and clearly on the high side, but it was not wholly inappropriate. However, the discount of 1 1/2 years given to the Applicant in respect of his good character and on account of the comparatively low sentences imposed on his co-defendants, one of whom pleaded guilty was, we think, far too generous. The overall result, perhaps for the wrong reasons, nevertheless achieved a just and proper sentence for what was on any view a serious case. Large quantities of forged banknotes were being produced; there was a mainland connection; and the criminal enterprise had extended over several months.

14. For all the reasons we have given, we therefore refuse leave and the application must be dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. and Miss Vivien Chan, G.C. for D.P.P./Respondent

Mr. Christopher Grounds instructed by Messrs. M.F. Ko & Co. for Applicant.