R. v. Lau Chor Hung

CACC000069/1995

IN THE COURT OF APPEAL

1995, No.69

(Criminal)

___________

___________

Coram: Hon. Power, V.-P., Mayo, J.A. & P. Chan, J.

Date of hearing: 21 November 1995

Date of judgment: 21 November 1995

________________

J U D G M E N T

________________

Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one count of conspiracy to make counterfeit notes. This alleged that he, together with Chung Yi-wai and Huen Chi-man, conspired to make counterfeits of currency notes, namely, documents purporting to be $100 denomination banknotes issued by the Federal Reserve Bank of the United States of America, intending that they or others pass or tender the said counterfeits as genuine, and that conspiracy occurred between September 1993 and January 1994. He pleaded not guilty and was convicted after trial before Deputy Judge Beeson and a jury and sentenced to imprisonment for 8½ years. He now seeks leave to appeal against both conviction and sentence.

2. The principal, but by no means the only, evidence against him came from an accomplice, Chung Yi-wai ("Chung"), who was the first person mentioned in the charge. The trial judge set out her evidence as follows:

"Chung says, the person he knows as Kou Kan (the defendant) came into the picture, and he has identified him as the defendant.

He says the defendant came 7 or 8 times for late night sessions at the printing factory (the Classic Printing Company) after Chung's brother had left or stopped work for the day."

He is adamant and unshaken in his evidence that the defendant was the person he was dealing with and who helped with the notes, and who paid him and Huen $5,000 each for their assistance.

His evidence is very detailed both in relation to how the printing was carried out and also in relation to the defendant that places him as the organizer really of the actual printing.

There is a correlation between the visits that Chung tells us about - visits of the defendant to the Classic Printing - and the time during which Lam Kim-ming (a police undercover officer) was dealing with the man he knows as Ah Hung (It was the Crown case that Ah Hung was the defendant and was the same person as Kou Kan.) The complaints about poor colours, or irregular serial numbers, or repetitive serial numbers made at the meetings with Ah Hung correspond with the complaints made by Kou Kan to Chung, as they endeavoured to improve the quality of the notes."

3. Chung said that the defendant was the order taker, the negotiator and the master printer. His evidence was corroborated by fingerprints which were found on a file cover and some plastic sheets seized by the police at the Classic Printing. There was also fingerprint evidence taken from an envelope containing 309 forged notes, which an undercover police agent said had been handed over to him by the defendant on 23rd December.

4. A surveillance operation had been going on for some weeks and during the course of it photographs were taken which showed a person with the appearance of the defendant and taped recordings were made of ten telephone calls. One of the voices on the tapes was identified by the police witnesses as that of the defendant. There were also five face to face meetings, during which the two police undercover officers said they were able to have clear sightings of the defendant one of which was in clear daylight.

5. The evidence of arrest was important as at the time of arrest a number of gravely incriminating items were seized. The judge in her summing-up dealt with that evidence as follows:

"The items that are found on the defendant on the 24th, if you accept the Crown case as to the evidence about the handbag and what was in the handbag, the wallet and what was in the wallet, and the fact that he was wearing a pager, if you accept all that evidence, those items lead to Oak Street and to Junk Bay and provide a connection with the holder of the handbag and those two addresses, particularly by the keys, but also by the Oak Street address which was written on a currency exchange memorandum which was in the handbag. Also in the handbag is a $10 banknote with the serial number that is referable to some counterfeit banknotes that we have in evidence.

In respect of the Oak Street address the keys fit and there are items referable to counterfeiting there. There are also items there that Chung says in evidence he has seen the defendant with at Classic Printing Company."

"The other item at Oak Street of course is the toothpaste tube which has the fingerprint of this defendant on it. The other address to which the items from the handbag lead is at Junk Bay where there is a large number of the defendant's personal documents and letters. They are not all old documents dating back to 1991, though there is an expired entry permit amongst the documents, but the Oak Street rental and deposit receipts are there, as is the defendant's marriage certificate. He told us he got married comparatively recently, in the latter half of last year.

There are also items connected with counterfeiting and which relate back to Classic Printing or could relate back to Classic Printing at the Junk Bay address.

Classic Printing of course is connected to the defendant, the Crown say, by the fingerprints found on the file cover and the plastic sheets that were there and the very many items that are relating to the counterfeiting operation in the printing of the banknotes.

Obviously if you found all the Crown evidence or indeed most of it proved, you'd have ample evidence of the agreement or could infer an agreement to commit this crime of making counterfeit banknotes. In other words, you'd have evidence of the conspiracy. That is generally how the defendant is implicated."

6. So much for the Crown case. The defendant in evidence denied any involvement in any conspiracy. He said that the police officers were mistaken in their identification and that it was not his voice in the telephone conversations. He said the accomplice Chung had a grudge against him because of ill feeling which arose between them while both were in prison on remand. He says, as to the arrest, that he had gone innocently to meet a friend Yiu Chai and the friend, having departed just before the time of arrest, had left all of the incriminating items at the scene where they were found when the police swooped. It cannot but be said that there was a very strong case indeed against the defendant. The judge summed up thoroughly putting clearly the defence case. It is apparent from the summing-up that the case was fought from start to finish with no concessions being made by defence counsel.

7. The applicant drafted his own grounds of appeal and he has urged further matters when addressing us today. He firstly contends that the trial judge was prejudiced against him. He points to four matters which he says indicate prejudice:

(i) a failure by the judge critically to examine the evidence of Lam Kin-ming, one of the police undercover agents,

(ii) a failure by the judge to point out that the tape had become blank at crucial moments such as the alleged handover of forged notes,

(iii) a failure to deal properly with the evidence of the landlady of the rented premises Madam Chung Wan-kui,

(iv) a failure to deal fairly with the items which were found in the Junk Bay residence.

We have read the summing-up with care and have no hesitation in rejecting as completely unfounded the suggestions of prejudice and failure properly to deal with significant matters. The summing-up shows an even-handed and balanced approach and displays no hint of partiality or prejudice. We reject that ground of appeal.

8. The applicant next launches an attack upon the evidence of the accomplice suggesting that that witness was taught by PC3772 as to the evidence he was to give. It is suggested that the evidence was untruthful throughout and that the jury should not have been prepared to place any weight upon it. We can say no more in this regard that this was very much a matter for the jury. The judge gave the proper accomplice warning and it was for the jury to make their assessment of that evidence.

9. The third and fourth matters complained of are the failure of the Crown to supply fingerprint evidence and tape-recordings before the trial and complaints as to the conduct of the defence by Mr. Poll, who then appeared for the defendant. We have had the following reply from Mr. Poll as to these allegations.

"Preparation of the Case

10. Detailed instructions was obtained from the defendant by the staff of the Legal Aid Department. After the pre-trial review on the 15th September 1994 I spent 45 minutes with the defendant clarifying his instructions and directing Legal Aid to follow-up certain matters.

11. At the pre-trial review the defence were advised that there was additional evidence and subsequently some 27 additional witness statements were served upon the defence by the prosecution.

12. There was a further pre-trial review on the 2nd November when the defence were advised that a further set of additional witness statements would be served upon them.

13. On the morning of 15th November 1994 I went to Lai Chi Kok, prepared to spend the whole day if necessary with the defendant, in order to take further instructions particularly in relation to the new material. After almost 2 hours with the defendant everything had been covered excepting the finger-print evidence and the tape recordings. At that time the defence did not have the enlarged prints for comparison and due to an oversight by Legal Aid the tape recordings and transcripts had not been supplied to the defendant.

14 At that meeting the defendant expressed concern that he had not actually viewed all the exhibits.

15 On the 16th November, the 1st day of trial, I applied for and was granted an adjournment until 2.30 pm the following day so that the defendant could listen to the tapes. The defendant spent that day and part of the next morning listening to the tapes and I took instructions from him.

16. On the 17th November a further adjournment was granted until 2.30 pm the next day so that the defendant could have more time to consider the evidence I took further instructions from the defendant that afternoon."

The summing-up bears out to a very great extent what is said by Mr. Poll. It indicates that this prosecution was fought, if I can use the expression, tooth and nail, by defence counsel in the interest of his client. It indicates that there was a carefully orchestrated defence which was thoroughly put by counsel. We have no hesitation in rejecting the complaints made and find there is nothing in this ground of appeal.

10. The applicant today has raised further matters which he suggests were unsatisfactory features of his trial which make the conviction unsafe. He suggests that no report was obtained from the Correctional Services Department as to an assault which he said was made upon him by the accomplice which, had it been obtained, would have had bearing upon his veracity. He again suggests that the statements of prosecution witnesses were not supplied to him early enough. He suggests that evidence should have been called as to the origin of the pager which, according to the prosecution evidence, was found upon him and that the jury was somehow prejudiced by being supplied with a copy of the transcript of the telephone conversations which was marked with letters of the alphabet to indicate the different speakers. These were all matters which fell to be dealt with by defence counsel at trial. He could have done so had he considered it in the interests of the defendant. That he did not do so is not a matter which can properly be urged before this court. We have, as we have already indicated, no doubt that counsel conducted a vigorous and considered defence. We reject these further suggestions that the applicant was disadvantaged by failure of counsel to put matters essential to the defence before the jury.

11. There was finally complaint about the identification directions. We are satisfied, having read them, that they were comprehensive and fair.

12. The summing-up squarely put the defence. Clearly, and not surprisingly, given the strength of the Crown case the jury rejected the defence evidence and convicted.

13. The application for leave to appeal against conviction is refused.

14. The applicant also appeals against sentence.

15. The applicant states that admissions that he had committed the offence charged made by his counsel when mitigating were made without instructions. As to this his counsel states:

"Mitigation

4. The mitigation I put forward on behalf of the defendant commences at page 77(D) of the bundle and runs through to page 78(I).

5. At page 77(E)-(N) I explain that although he had intended to go 'straight' when he came out of prison he became ensnared by the forgery syndicate because he was pressured to repay a debt, incurred prior to the term of imprisonment, which multiplied 3 fold during his incarceration and which he had no other means of repaying.

6. In the next part at page 77(J)-(N) I indicate that he had realised he should have pleaded guilty but that because at the time of his arrest he had only shortly before been released from prison, he couldn't face another term of imprisonment.

7. This information was given to me by the defendant, for the purpose of his mitigation, after the Jury had returned their verdict. After a short discussion with the defendant about the difficulties of presenting such a volte-face at that stage of the trial, we decided that as this was the only mitigation he had, I would advance it on his behalf.

8. I confirm that what I said at the commencement of the mitigation, recorded at page 77(D) and (E), is true and correct. The matters referred to above are the ones that I had discussed with the defendant prior to the commencement of Court and they were matters that he wished me to bring to the attention of the Judge.

9. The other matter upon which I received specific instructions for the purpose of the mitigation appears at page 78(B)-(C) where I informed the Court that the defendant was under the impression that the forged notes were not for actual distribution but had been prepared to satisfy the client."

The mitigation was made in the presence of the defendant. We have no hesitation in accepting the statement of counsel. We consider that this court could have refused to hear the application to appeal against conviction upon the basis that a full admission of the offence had been made. We did not do so but heard that application and dismissed it on the merits. All the applicant has sought to say in his application for leave to appeal against sentence is that in a case which occurred on 28th March 1994 a conspirator in a conspiracy to forge banknotes was sentenced to imprisonment for five years. We are not very much assisted by that observation. The judge, when sentencing, said:

"The facts as revealed by the evidence showed that you were an active participant in a venture that was destined, as you thought, to make counterfeit US banknotes with the intention that they would be used in India. You entered to negotiations with undercover ICAC agents for the manufacture and sale of those notes and used your best endeavours to supply those notes intending that they be passed as genuine ones.

You obtained access through the agency of Huen Chi-man, a co-defendant, now at large, to the printing workshop operated by Chung Yi-wai's brother and with the assistance of Huen and Chung, and making use of your own specialist knowledge, manufactured notes.

One consignment intended as a test run was handed over to the undercover agents and you received payment for it. Negotiations were begun for a much larger consignment and you took steps to supply that quantity. You were arrested on 24th January 1994 as you prepared to hand over more notes in furtherance of that larger consignment."

The judge then went on:

"I have heard what your counsel has to say in mitigation on your behalf but there is little he can advance on your behalf that is of any mitigatory value whatsoever. I do note that these notes did not go into circulation and that the venture was the result of an undercover operation by ICAC. Your counsel has advanced before me your regrets for this offence but I find that difficult to accept as genuine in view of your attitude at trial."

16. We cannot but echo those words. We find no shred of remorse in this defendant. He fought a trial which covered almost two months. He then turned his coat in an endeavour to obtain leniency by admitting the offence. He then reversed the coat to come before this court and pursue an appeal against conviction. The only thing that can be said for him is that in his final plea to this court he had said no more than that a conspirator in another case was sentenced to five years. The trial judge went on to note that he had on 19th April 1991 been convicted of the offence of possession of forged banknotes and sentenced to 3½ years and that, having been released from jail on 16th June 1993, immediately embarked upon this venture. She said:

"This was a serious offence. Although the notes were not of a very high standard it is quite possible they could have been passed successfully in countries where US banknotes are infrequently seen and where detection methods are not very sophisticated.

Your activity in furtherance of the conspiracy stretched over several months. You had the ability to make, or had access to, basic negative films and you had sufficient knowledge to work on a series of notes that lacked complex security devices and you worked conscientiously to improve the quality of the notes. You were active in negotiating the deals and in organizing the manufacture and I have no doubt that the major share of any profit was intended to be yours.

Currency offences such as these merit a high sentence. Hong Kong has gained for itself, in the past few years particularly, a notoriety for forgery of valuable documents that gives it an undesirable reputation with the rest of the world and makes particularly difficult the running of commercial enterprises. Indirectly it makes life more difficult for the ordinary citizen who has to put up with increasingly annoying security protection arrangements."

The trial judge then stated that she was satisfied that an appropriate sentence was 8½ years. She, in our view, rightly underlined the seriousness of this offence having, as it does, international ramifications. We find ourselves quite unable to fault the sentence of 8½ years which she imposed. The application for leave to appeal against sentence must also, therefore, be refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Applicant in person.