HKSAR v. Cheung Yiu Kuen

CACC000793/1997

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No.793
(Criminal)

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Coram: Hon. Power, V.-P., Leong and Stuart-Moore, JJ.A.

Date of Hearing: 21 August 1998

Date of Judgment: 21 August 1998

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J U D G M E N T

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

1. The applicant in this matter pleaded guilty to two charges of possession of equipment for making a false instrument, contrary to s.76(1) of the Crimes Ordinance, and one charge of possession of a false instrument, contrary to s.75(1) of the Crimes Ordinance, Cap.200.

2. The first of these offences was particularized in the following way: that he on 23rd October 1992, together with Li Tung-leung, had in his custody or under his control machines or implements or paper or other material namely one embossing machine, one encoding machine, two stamping machines, one heating gun, paper bearing credit card information, blank Mastercard and Visa signature panels, pieces of foil containing Mastercard and Visa holograms, pieces of foil embossed with credit card information and several rolls of silver and gold tin foil which to his knowledge were or had been specially designed or adopted for the making of any instrument, namely a credit card, with the intention of making a false credit card and that he or another would use that false credit card to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.

3. The second possession of equipment charge alleged that he, again together Li Tung-Leung, had in his custody or under his control instruments, which were and which he knew or believed to be false, namely 72 credit cards with the intention that he or another would use it to induce somebody to accept it as genuine and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.

4. In the third charge, possession of a false instrument, again it was alleged that he with Li had in his custody or under his control implements or paper or other material namely one Hong Kong Immigration Department arrival chop, one Hong Kong Immigration Department departure chop, eight pieces of paper bearing the images of Hong Kong British passports, one piece of paper of a Hong Kong passport bearing the No.A624865 in the name of Cheung Kwok-ming, one piece of paper of a Hong Kong passport No.A651387 in the name of Lau Kwok-wah which to his knowledge were or had been specially designed or adopted for the making of any instrument namely a passport, with the intention of making a false passport and that he or another would use that false passport to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice. He pleaded guilty to those charges.

5. Deputy Judge Poon, when sentencing, set out the facts as follows:

"On 23 October 1992, the defendant and another male were seen coming out from a flat in Tai Po. They were stopped by police officers and taken back into the flat. Therein the plastic blanks, tin foil, credit card information, embossing machine, tipping machine, encoding machine and a hot plate stamping machine (which are the subject matter of the 1st charge), 72 counterfeit credit cards in various stages of manufacture (the subject matter of the 2nd charge) and two forged Hong Kong Immigration chops and two pages of paper similar to those found in genuine passports (subject matter of the 3rd charge) were seized.

The defendant admitted his involvement in the manufacturing of the false credit cards and that he had borrowed information relating to names of credit card owners, expiry dates of cards and credit card numbers for that purpose."

6. The original written grounds that were filed by the applicant himself suggested that the judge when passing sentence had failed properly to consider the overall situation and the facts of the case, and that the starting point was too high and the sentence was too heavy. We have read with care the reasons which the judge gave when sentencing. They were entirely appropriate. I set them out briefly as follows. The judge said that the clear record and guilty plea were taken into account and that he took into account the fact that it was a late plea made after records of interview were ruled inadmissible. He went on to say:

"I have also taken into account his self surrender to the police after being a fugitive for 5 years. I am referred to the case of Cheng Shui-to (1996) 2 HKCLR 128 wherein is stated that an accused who plays an active but not necessarily key role in a medium-sized operation with no elaborate planning and equipment and without an international dimension should receive a sentence of 5-6 years after trial."

He said that he considered that the flat in which these materials were found constituted a medium-sized factory, noted that there was no evidence of any international dimension but also noted that the defendant had clearly played a substantial role in the manufacturing of the cards. He commented that these were serious offences which strike at the root of Hong Kong's commercial system and deliberately flouts the administration of the Immigration Department.

7. The judge went on to say that a starting point of 5 1/2 years was appropriate, that a discount would be given, albeit a truncated one, of one year for the late plea, and that he would, perhaps generously, also be prepared to give a discount of six months because the defendant had surrendered himself. The starting point of 5 1/2 years was therefore reduced to one of four years.

8. We find no merit of any sort in the suggestions that the judge took too high a starting point or that the sentence was too heavy. It was an entirely appropriate one which was imposed after the judge had considered all of the relevant facts. There is no merit in any of those matters.

9. There is one matter, however, which we have in camera considered and which we are satisfied does warrant a substantial discount. They were serious offences but we are satisfied that the matter to which we have referred does warrant a discount of one year.

10. The application will, therefore, succeed, its hearing will be treated as the hearing of the appeal, the appeal will be allowed and the sentence of four years concurrent on each will be replaced by one of three years concurrent on each.

Representation:

Mr. I.G. Cross, S.C. leading Miss Denise Chan (D.P.P.) for the Respondent.

Mr. Buchanan assigned by D.L.A. for the Applicant.