The Queen v. Wan Siu Kei
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IN THE COURT OF APPEAL 1992, No. 486 Headnote Sentencing - Possession of forged bank-notes charged under s.76(1) in Part IX of Crimes Ordinance prior to Crimes (Amendment) Ordinance which came into effect on 26-6-92 replacing the old Part IX - The question before the court was whether the applicant was, under Article 12(1) of the Bill of Rights, entitled to the benefit of a lighter sentence because, since the commission of the offence, provision had been made for a lighter penalty. HELD (by a majority) that in applying Article 12(1) of the Bill of Rights the sentencing judge must look broadly to the circumstances of the case and is not confined to the statement of the offence in the indictment. The minority view was that the Court of Appeal was bound by R. v. Mohammad Faisal Cr. App. 540/92 to apply Article 12(1) of the Bill of Rights with reference only to the matters alleged in the indictment. IN THE COURT OF APPEAL 1992, No. 486 BETWEEN
---------- Coram : Hon. Macdougall, V.-P., Litton & Bokhary, JJ.A. Date of hearing : 6 July 1993 Dates of Judgment : 1 September 1993 ---------------------- J U D G M E N T ---------------------- Macdougall, V.-P.: 1. The 1st appellant Wan Siu-kei was found guilty on 5 November 1991 after trial before Leong J and a jury on one count of possession of forged banknotes contrary to section 76(1) of the Crimes Ordinance Cap. 200. He was acquitted in respect of a second count of possession of forged banknotes. He now appeals against the sentence of five years’ imprisonment passed on him on 5 November 1992. 2. The facts of the case were that on 18 July 1991 a police party intercepted the appellant in the street shortly after he had left the flat which he occupied in Whampoa Estate. On being told that he was suspected of having forged banknotes in his possession the appellant told the police that they were mistaken. He was then searched and was found to be in possession of a bunch of keys which he admitted belonged to his flat. 3. When the police told him that they had a warrant to search his flat, he again replied that he did not have any forged banknotes and protested that it was all a mistake. 4. On gaining entry to the flat by using keys from the bunch found on the appellant's person, the police conducted a search of the premises in the course of which they discovered a forged $100 United States banknote in the drawer of a desk. When asked to explain how he had come to be in possession of such a note, the appellant replied that when he had been driving a taxi a passenger from Taiwan had given it to him. He later found that it was a forgery when he took it to a money changer. Realising that it was valueless, he simply left it in his desk drawer. 5. Soon after the discovery of this forged banknote the police found 700 forged $100 United States banknotes contained in a brown envelope and concealed in a pillow case in a bedroom of the flat. On being cautioned, the appellant replied “This bag of things was given to me by my friend”. 6. Mr. Andrew Ma, who appeared on behalf of the appellant in this court but not in the court below, submitted that the sentence imposed by the judge was in excess of that authorised by law. He acknowledged that the appellant had properly been indicted on 15 November 1991 in respect of an offence against section 76(1) of the Crimes Ordinance which was then in force and read as follows:
7. However, subsequent to the filing of the indictment but prior to the commencement of the trial on 15 October 1992, Part XI of the Crimes Ordinance which included section 76(1) was repealed and replaced by new provisions which came into operation on 26 June 1992. The old section 76(1) was replaced by the new section 100 which reads as follows:
8. Article 12(1) of the Bill of Rights Ordinance came into operation on 8 June 1991 and provides:
8. Mr. Ma submitted that the old section 76(1) made no distinction between a person who, without any intention to pass or tender it as genuine, knowingly had a forged banknote in his possession and one who not only knowingly had it in his possession but intended to pass or tender it as genuine. Since, therefore, there was no allegation in the court in the indictment on which the appellant was convicted that he had intended to pass or tender the forged banknotes as genuine, the appellant was only liable to the maximum sentence provided by section 100(2). For this contention he relies on the last sentence of Article 12(1). 9. In R. v. Lai Kai-ming Cr.App. No. 296 of 1992 another division of this court rejected as restrictive the Crown’s interpretation that Article 12(1) of the Bill of Rights only applies where the legislature has retained the definition of the offence in its entirety and has simply lessened the penalty by amendment. 10. That was a case involving the possession of forged instruments, not forged banknotes, and therefore, while the legislation under which the charge was brought was the old section 76(2), which was also repealed and replaced on 26 June 1992, the section that replaced it was section 75(2), not section 100(2). However, this is of no relevance with regard to the issue with which we are here concerned since section 75, like section 100, is composed of two subsections, the first of which is directed at custody or control of a false instrument with the intention of uttering, and provides a maximum sentence of 14 years’ imprisonment, while the second subsection is directed at knowing custody or control simpliciter. 11. Mr. Ma also cited R. v. Sze Yung-sang Cr.App. 486 of 1992 (unreported) in which another division of this court, in allowing an appeal against sentence by the present appellant’s co-accused, who pleaded guilty at the trial, stated:
12. I am unable to find anything in Lai Kai-ming that distinguishes it from the present case. Having rejected the Crown’s restrictive interpretation of Article 12(1) the court there stated:
13. This was based on the finding expressly stated by the district judge in his Reasons for Verdict in that case:
14. It was neither the judge’s finding nor the reason given by this court for its decision on appeal that the defendant had not intended to use the false instruments to induce somebody to accept them as genuine. The finding of the judge and the basis on which this court proceeded was that the defendant had not in fact uttered or used them. 15. That being so, a contention that the basis on which the appeal in Lai Kai-ming was allowed was that the defendant had been in possession of the false instruments without any intention to use them, and that therefore the circumstances of his case were covered by subsection (2) of the new section 75, thereby attracting a maximum sentence of only three years’ imprisonment, is unsustainable. 16. I am therefore of the opinion that the decision in Lai Kai-ming is of no assistance to the Crown. Nor do I think that it was misunderstood by this court either in Sze Yung-sang or in the later decision R. v. Mohammad Faisal Criminal Appeal 540 of 1992 (unreported) of 22 June and to which we now refer. 17. R. v. Mohammad Faisal, like the present case, was one in which the defendant had properly been indicted on two counts of having in his custody or possession forged banknotes knowing them to be forged contrary to section 76(1) of the Ordinance. The defendant pleaded guilty on both counts and was sentenced to concurrent terms of three and a half years’ imprisonment. 18. At the hearing of the defendant’s application for leave to appeal against these sentences it became apparent that neither counsel had drawn the sentencing judge’s attention to Article 12 which had came into force prior to the sentencing of the defendant. 19. In delivering the judgment of the court Power V.-P. said:
20. Plainly, that division of this Court rejected the argument which is now advanced to us by Mr. Schapel for the Crown that, if the facts reveal that a defendant convicted of an offence against the old section 76(1) had knowingly been in possession of forged banknotes with the intention either to pass or tender them as genuine or to deliver them to another with the intention that he or another shall pass or tender them as genuine, the maximum sentence applicable is that provided for by subsection (1), not subsection (2), of the new section 100, namely, 14 years’ imprisonment. With the greatest of respect to the members of that division I find myself unable to agree with them. 21. We were informed by Mr. Schapel, for reasons which we were unable to follow, that the Crown had not yet decided whether to seek leave to appeal to the Privy Council in order to rectify what it contends is the erroneous decision of this court in R. v. Mohammad Faisal and, presumably, those in the two earlier cases. If the Attorney General is of the view that that case was wrongly decided, he should pursue the appropriate avenue of appeal. 22. I am unable to distinguish Mohammad Faisal. That being so, I have no doubt that this court is bound by that decision and that the application of this wholly undeserving appellant must therefore succeed. I would allow the appeal, set aside the sentence of five years’ imprisonment and substitute for it one of two years. Litton, J.A.: 23. I concur with my Lord Mr. Justice Bokhary’s judgment a draft of which I have had the advantage of reading. I would dismiss this appeal against sentence. 24. Ultimately, what we are concerned with here is the application of Article 12(1) of the Bill of Rights, and in particular the last sentence thereof, to the circumstances of the appellant’s case. The question we have to ask ourselves is whether “provision [has been] made by law for the imposition of a lighter penalty” in dealing with the offender. In applying the Hong Kong Bill of Rights the courts are required to adopt a broad and purposive approach, having regard to the fact that “the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong....”: s.2(3) in Part I of the Ordinance. See also R. v. Sin Yau Ming [1992] HKCLR 127 at 139-145. The member states who are parties to the International Covenant on Civil and Political Rights have very different legal systems, and to many of them the practice of criminal pleadings in our courts would seem very alien. In these circumstances to simply look to the formulation of the charge in the charge sheet, in applying Article 12(1), and not have regard to all the circumstances relevant to the sentence passed on the offender, seems to me to offend against the cardinal rule of construction of the Bill of Rights: a “constitutional document.... brought into force by an Ordinance" (Sin Yau-Ming at 139-145). 25. Looking at the matter broadly, what do we find? As stated by my Lord Mr. Justice Bokhary in his judgment, the appellant’s admissions to the police provided ample evidence of the specific intent required under the present section 100(1) of the Crimes Ordinance Cap. 200. And in sentencing the appellant the trial judge said:
26. The only way the appellant could have done this was either himself to have passed the notes as genuine or to have delivered them to another for that other person to pass them as genuine. All the ingredients for a charge under s.100(1) of the new Part XI of the Crimes Ordinance were present. Plainly the trial judge sentenced the appellant upon this basis. The old section 76(1) under which the appellant was charged encompassed a very broad spectrum of criminality - from possession simpliciter to possession with intent to pass the notes as genuine - and if this ingredient had not been present the judge would have imposed a lesser penalty. 27. The facts of R. v. Lai Kai Ming, Cr. App. No. 296 of 1992, were quite different. The defendant there was a mere conduit-pipe and, as the sentencing judge said, there was “no aspect of uttering or indeed any form of use .... on the part of the defendant”. Nor was there any evidence of intention to use. It was a case of possession of forged credit cards simpliciter, and there was no suggestion in the course of the case that the defendant there could have been charged under the new section 75(1), which attracts a maximum term of imprisonment of 14 years. The facts simply precluded both the trial judge and the Court of Appeal from approaching the matter of sentence as if the defendant had intended to use the credit cards to induce someone to accept them as genuine; the specific intent needed to bring the case within the new s.75(1) was wholly absent. 28. In Lai Kai Ming, as my Lord Mr. Justice Bokhary has explained, the Court in applying Article 12(1) of the Bill of Rights adopted a broad approach, rejecting the restrictive view urged by Crown Counsel which in effect was this: Article 12(1) only applies where the new provision of law has retained the definition of the offence in its entirety and simply lessened the penalty. This argument, if valid, would have confined the court’s consideration of the case to the specific ingredients necessary to establish the charge. The division of this court in R. v. Faisal Cr. App. 540/92 approached the construction of Article 12(1) restrictively, confining consideration of the question of penalty to the way the charge was formulated on the charge sheet. This seems to me to be at variance with the guidelines with regard to the construction and application of the Bill of Rights as set out in R. v. Sin Yau-ming at 139-145. It could also be said to be at variance with the broad approach to construction in Lai Kai-ming, even though the court there did not have to consider the point about specific intent. 29. I too would dismiss this appeal. Bokhary JA: 30. On November 5, 1992, this appellant was convicted (before Leong J and a jury) on one count of possession of forged bank notes, contrary to section 76(1) of the Crimes Ordinance, Cap 200. The basis of that conviction is this. On or about July 18, 1991, in a flat in Whampoa Estate, he, without lawful authority or excuse, had in his possession 701 forged US$100.00 notes, knowing them to be forged. He was on the same day sentenced to five years’ imprisonment. And he now appeals against that sentence. 31. The section under which the appellant was charged was in force at the time when he offended under it. His liability to be convicted under it is not affected by its repeal thereafter. Nor, subject to the possible operation of article 12(1) of the Bill of Rights, does such repeal affect his liability to punishment pursuant to the section under which he was convicted. 32. Does the article operate in the circumstances which have arisen? 33. The circumstances are these. The section under which the appellant was charged, section 76(1) of the Crimes Ordinance, Cap 200, reads:
34. On June 26, 1992, that section was repealed and there came into force the present section 100 of the Crimes Ordinance, cap 200, which section reads:
35. So the former section 76(1), under which the maximum penalty is 14 years’ imprisonment, covers two categories of persons in knowing possession of a forged bank note: (i) those who intended to pass it as genuine or deliver it to another for him to do so and (ii) those who had no such specific intent. Under the present section 100, however, those two categories are dealt with separately. Those with that specific intent are dealt with under subsection (1) which lays down a maximum penalty of also 14 years. And those without that specific intent are dealt with under subsection (2) which lays down a maximum penalty of only three years’ imprisonment. 36. The reform is, if I may say so, a plainly sensible one, since it brings about a more orderly regime. 37. If the present section 100 had been in force at the time of this appellant’s offence, he would have been charged under subsection (1) which, just like the former section 76(1) under which he was in fact charged, lays down a maximum penalty of 14 years’ imprisonment. That is because his admissions to the police, which the learned judge found were voluntary, provided ample evidence of the specific intent required under the present section 100(1). 38. Having done something which has resulted in his being convicted, under the former law, of an offence for which he was liable to be sentenced to a maximum of 14 years’ imprisonment and for which, if done after the change which has taken place in the law, a person would, under the present law, likewise be liable to be sentenced to a maximum of 14 years’ imprisonment, the appellant contends that he was nevertheless entitled to be sentenced on the basis that the maximum penalty to which he was liable was three years’ imprisonment. 39. That he says is the result of the last sentence of article 12(1) of the Bill of Rights, which reads:
40. Unless there really is - as the appellant submits that there is - binding authority for the proposition that article 12(1) dictates the result for which the appellant contends, I would not construe the article as so doing. 41. Three cases in particular call for examination. Each was decided in this Court this year. They are: R. v. Lai Kai Ming, Criminal Appeal No. 296 of 1992, January 12, 1993, (unreported); R. v. Sze Yung Sang, Criminal Appeal No. 486 of 1992, March 23, 1993 (unreported); and R. v. Faisal, Criminal Appeal No. 540 of 1992, June 22, 1993, (unreported). 42. In R. v. Lai Kai Ming (supra) the conviction was of possession of a false die, contrary to the former section 76(2) of the Crimes Ordinance, Cap 200, under which subsection the maximum penalty was 14 years’ imprisonment. The sentence passed was one of one year and nine months’ imprisonment, a starting point of two and a half years having been adopted. But by the time when sentence was passed, the provision under which the defendant was charged had been repealed. The new section 75 of the same Ordinance covered the possession of false instruments, which were defined to include dies. There are two subsections to the new section 75. Subsection (1) applies where there is a specific intent to use or induce acceptance of the instrument as genuine, and lays down a maximum penalty of 14 years’ imprisonment. Subsection (2) applies where there is no such specific intent, and lays down a maximum penalty of three years’ imprisonment. 43. The record in R. v. Lai Kai Ming (supra) shows that the defendant there did not have that specific intent. He had fallen victim to “loan sharks”. As a condition of one week’s extension of time to pay, they made him collect some forged credit cards. He did so. And he was caught with those cards on him. That is what happened in that case. So, if what he did had been done in the state of the law prevailing by the time when he was sentenced, he would have been charged under the new section 75(2). Nevertheless, the Crown argued that article 12(1) only applies where the legislature had retained the definition of the offence in its entirety and had simply lessened the penalty by amendment, and that the article has no application where the entire offence had been redefined. Convincingly in my view, Litton JA (delivering the judgment of the division in which he sat with Cons V-P and Kempster JA) characterised that approach as “restrictive” and rejected it. 44. What the court decided in R. v. Lai Kai Ming (supra) can be summarised thus. The defendant, whose criminal conduct consisted of possession without specific intent, benefited from the change in the law which, whatever its form, had the effect of reducing the maximum penalty for such conduct from 14 to three years’ imprisonment, so that he was entitled to be sentenced on the basis that the maximum penalty to which he was liable was only three years’ imprisonment. From that decision this proposition necessarily emerges. Article 12(1) goes to substance rather than form; and the effect of the final sentence thereof is this: when a person comes to be sentenced, and the substance and reality of the matter is that the maximum penalty for his criminal conduct has been reduced between commission and sentencing, then he is to be sentenced on the basis of the reduced maximum. 45. If that is the law, then the present appellant cannot succeed. Unlike that of the defendant in R. v. Lai Kai Ming (supra), his criminal conduct did include specific intent. And the maximum penalty for such conduct has not been reduced. 46. In my judgment that is the law. If it be accurate to say that other decisions of this Court go the other way, then we would have to choose which precedent to follow. And I would choose to follow R. v. Lai Kai Ming (supra), which I am convinced is correct. The proposition which I extract from it: conforms to the wording and spirit of the relevant article of the Bill of Rights; promotes substance rather than form; and ensures that sentencing proceeds upon current standards, providing everyone with the leniency which they deserve but none with any windfall which they do not deserve. 47. In R. v. Lai Kai Ming (supra) it operated to secure for the defendant there the leniency which he deserved. And in the present case it operates to deny the present appellant the undeserved windfall to which he lays claim. 48. In R. v. Sze Yung Sang (supra), which as it happens concerns the present appellant’s co-accused, the division hearing the appeal did not proceed on the basis of the proposition which I have extracted from R. v. Lai Kai Ming (supra). That is not too difficult to understand since counsel for the Crown seems to have conceded, without any reference to specific intent, that the governing maximum was three years’ imprisonment. That specific intent was not considered is evident from the fact that, having adverted to the maximum of 14 years’ imprisonment under the present section 100(1) and that of three years’ imprisonment under the present section 100(2), the court said this of the three-year maximum: “The reasons for that penalty being so low we find difficult to understand.” 49. In R. v. Faisal (supra) the Crown did take the point about specific intent. It was rejected on the basis of, as the court put it, “the simple fact that s. 76 did not provide for any offence which involved an element of intention”. The reality is, however, that under the old law persons were more severely punished - and legitimately so - where their possession of the offending article was accompanied by specific intent. And the approach in R. v. Faisal (supra) does involve a “restrictive” approach, looking to the form of the charge rather than the overall criminality disclosed by the evidence, which restrictive approach is something against which the court set its face in R. v. Lai Kai Ming (supra). 50. Let us further examine the implications of the restrictive approach by considering this example. Take a syndicate which passed forged bank notes as genuine. Its activities are on a massive scale. One day, its ringleader and number two man are caught in a police raid. They are found in possession of a huge quantity of forged bank notes. And they are brought to trial, charged under the old section 76(1) with possession of forged bank notes. It is of course a feature of the Crown’s case, albeit not an ingredient of the charge, that each man had the specific intent to pass the forged bank notes as genuine. The number two man pleads guilty, and becomes a Crown witness against the ringleader. So he is sentenced first. The circumstances of his offence are so grave that he draws 10 years’ imprisonment despite his guilty plea and the fact that he is going to give evidence for the Crown. 51. The ringleader having pleaded not guilty, his trial commences. The evidence against him, including that of the number two man, is adduced. Eventually, after a two-week trial, he is convicted. On the very day of his conviction, the old section 76 is repealed, and the new section 100 comes into force. The gravity of the ringleader’s offence is such that the sentencing judge, being the one who gave the number two man 10 years, considers 14 years’ imprisonment (the maximum penalty under the old section 76(1) pursuant to which the ringleader was charged and also the maximum penalty under the new section 100(1) pursuant to which he would have been charged if it had been in force at the time of the raid) to be the appropriate sentence. 52. Nevertheless, if the restrictive approach be right, the ringleader cannot be sentenced to more than three years’ imprisonment (being the maximum under the new section 100(2) - pursuant to which nobody would have ever considered charging him). And that bizarre - and, worse still, unjust - result would have to be presented to the public in general and the number two man in particular as a result of the Bill of Rights. They will also be told, I suppose, that in the event of future law reform along the lines of the sensible reform made to the Crimes Ordinance, Cap. 200, in June 1992, similar situations may arise. 53. Other examples can be given. But they are not necessary. The restrictive approach is, in my judgment, wrong in principle and unsupported by any binding authority. It collapses under the weight of its implications. 54. I would dismiss this appeal against sentence.
Mr. A.E. Schapel for Crown Prosecutor Mr. Andrew Ma instructed by M/S K.C. Wong & Co. for appellant |
Cases cited in this judgment