The Queen v. Lee Wing Keung
Read the full judgment text of CACC 76/1990 on BabelCite. This Court of Appeal judgment was delivered on 5 October 1990 before Silke, V.-P., Power & Macdougall, JJ.A..
Criminal law – sentencing – use of forged credit cards – possession of forged identity cards and forged credit cards – totality principle – appeal against sentence – whether totality of 5 years' imprisonment manifestly excessive – whether trial judge erred by reference to increase in maximum penalty for possession of forged identity cards which took effect after the offence – applicant with prior 1984 robbery conviction (7.5 years) – offences part of an organised scheme though lacking sophistication – use of forged cards frequent and increasing but detection uncommon – Court of Appeal refused leave to appeal and upheld the totality of 5 years' imprisonment – sentence breakdown: possession of forged identity cards 2 years; uttering forged identity card 3 years; uttering forged die (first credit card use) 2 years consecutive; uttering forged die (second attempt) 2 years; possession of nine forged credit cards 3 years – starting totality 6 years reduced to 5 years on totality – full credit for guilty plea.
Legal issues: Whether the totality of 5 years' imprisonment is manifestly excessive · Whether the trial judge erred by applying the increased maximum penalty for possession of forged identity cards to the first charge
Outcome: Application for leave to appeal against sentence refused; the totality of 5 years' imprisonment upheld
Cited by 1 case
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CACC000076/1990 Sentence: Use of forged credit cards. Possession of forged identity cards and forged credit cards.
BETWEEN
---------- Coram: Silke, V.-P., Power & Macdougall, JJ.A. Date of Hearing: 5 October 1990 Date of Judgment: 5 October 1990 ----------------- JUDGMENT ----------------- Silke, V.-P.: 1. This is the judgment of the Court. 2. On 6th October 1989 Lee Wing Keung - "the applicant" - went to the Chinese Arts and Craft Limited at China Resources Building and there he purchased, by use of a forged Gold American Express credit card, two Panda gold coins for the sum of $8,225.70. That card was in the name of Lee Chi Keung. On 8th October 1989 he went back to the same emporium and attempted to buy, with a different numbered credit card but still in the name of Lee Chi Keung, a ladies Rolex watch which he successfully bargained down to a price of $16,618.50. The sales person became suspicious and asked for proof of identity. He then produced an identity card, also forged, in the name of Lee Chi Keung. He had been originally reluctant to produce this and then had tried to snatch it back. At this point company staff, including security guards, apprehended him and held him until the police arrived. 3. When the police arrived he was found with two forged identity cards, the one which he already used and other in the name of Lam Wai Hung, and a total of nine forged credit cards in disparate names, one of them being one which he had attempted to use. This resulted in his appearance before His Honour Judge Corcoran in the District Court on a charge sheet containing five charges. There were separate charges on the same sheet in relation to a Fung Yu Ming who was D2. We are not concerned with him. 4. On his plea of guilty the trial judge sentenced him to a totality of 5 years' imprisonment imposing, respectively, first: for possession forged identity cards -2 years' imprisonment; second: for the uttering of a forged document, that was the identity card of Lee - 3 years' imprisonment; third: for the uttering of a forged die, that was the 6th October offence using a forged credit card -2 years' imprisonment; fourth: uttering a forged die, that was the second attempt to purchase goods at China Resources - 2 years' imprisonment; fifth: the possession of the 9 forged credit cards - 3 years' imprisonment. 5. The judge approached sentence on the basis of totality making the sentence on the third charge consecutive to the other sentences. On the basis of his original starting point, he had reached a totality of 6 years. He then considered that totality and thought it to be too high. He reduced the overall sentence to 5 years. The applicant now seeks leave to appeal against that sentence. 6. Miss Ong, who appears for the applicant in this court, has taken the point first, that in relation to the possession of forged identity cards the trial judge stated himself to have been aware of the increase in the maximum penalty from 7 years to 10 years and further that before that increase the normal tariff for the offence after trial was 2 years. As that increase did not come into effect until the 9th November 1989, that is subsequent to the date of the offence here, Miss Ong suggests that the judge was in error in his quantum of sentence on charge l. She also makes the point that, on charges two and five, the starting point which the judge took of 4 years and 5 years respectively is too high in all the circumstances. She really seeks to suggest that, in arriving at the totality he did, the trial judge had taken the wrong route by starting too high. 7. It must be remembered that the trial judge was not dealing with these charges as individual charges standing alone, all were part and parcel of the same scheme. While that scheme may not have been a very sophisticated one - we note that in the purchase of the Rolex the name signed on the back of the forged credit card did not coincide with the either false name which had been placed upon it or the name which the applicant placed on the credit slip and, further, that amongst the 9 cards which were found on him at least 3 were in female names - nevertheless, it was clearly an organised one. A friend had suggested he take these cards, which they both knew to be stolen, and try to get goods by their use. In 1984 the applicant had been convicted of the offence of robbery and had been sentenced to 7 1/2 years' imprisonment from which sentence he has been released on 15th October 1985 and returned to China. He had come back here some time in the year between the day of his release and the day of the offences. He had been unable to find a job and therefore entered into this course of illegality. 8. The trial judge gave him full credit for his plea of guilty. Our attention has been drawn today by Miss Ong to a fact unknown to the trial judge, a difficulty faced by a woman in China with whom he has cohabited, obviously with intervals, between 1978 and now and his desire to be with her in her physical difficulties which resulted from an operation to remove a bullet from her head and which has left her paralysed in one arm and one leg. 9. In The Queen v. Cnan Sik Kwan, Magisterial Criminal Appeal 1284 of 1989 (unreported), O'Connor, J., in commenting on the reasons for sentence by the magistrate from whose sentence the appeal lay, said this:
That is a factor this Court should also bear in mind. 10. While paying full account to that which Miss Ong had submitted on behalf of the applicant, and in particular to the element of lack of sophistication in the offences themselves, in the circumstances of this case overall we do not consider the totality of 5 years to be wrong - even if in one at least of the separate sentences the trial judge perhaps started at too high a point. 11. The application is refused.
Representation: Miss Ong Choo Neo (D.L.A.) for Applicant D.G. Saw, Esq. for Crown/Respondent |
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