HKSAR v. Lai Ying Wa

HCMA596/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 596 OF 2010

(ON APPEAL FROM KTCC 6786 OF 2009)

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BETWEEN

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Before : Hon M. Poon J in Court

Date of Hearing : 27 September 2011

Date of Judgment : 11 October 2011

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J U D G M E N T

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1.The appellant’s appeals against conviction has been dismissed earlier. I am now dealing with his appeal against sentence in respect of one charge alleging that without lawful authority or excuse he had in his custody or under his control false instruments, namely six banking documents purporting to be issued by HSBC, knowing or believing them to be false, contrary to section 75(2) of the Crimes Ordinance, Chapter 200.

2.Here are the reasons for dismissing the appeal against sentence.

3.The Magistrate, in passing sentence, took into account the nature of the false instruments, and the amounts stated on the instruments varied from US$5 million to US$600 million.  A starting point of 12 months’ imprisonment was adopted.  Further the Magistrate took into account the appellant’s good character; 30 years’ service in the Police Force and no doubt that would mean that he would have to face losing of his pension and the delay in prosecution namely that he was arrested in May 2007 he was not charged until the end of 2009.  With all the factors in mind the Magistrate gave him a reduction of 3 months.  In my view, that is a perfectly appropriate sentence in the circumstances of the present case.

4.The Magistrate was correct to find that the appellant, having been convicted after trial and showing no remorse, did not satisfy the criteria for the making of a community service order.

5.S. 119 of the Magistrates Ordinance, Cap. 227 empowers me to make such other order in relation to the award of any punishment in the matter as I think just, so I called for background report to look for any new development in the appellant’s personal circumstances after sentence was passed in the Magistracies.

6.Apart from a demand to repay a down-payment loan of $400,000 to the Treasury upon his conviction, the contents of the report reveal nothing more than was known to the Magistrate at the time of the sentencing.  I am not convinced that these constitute exceptional circumstances justifying a suspended sentence.

7.Appeal against sentence is dismissed.

Miss Winnie Lam, SPP of the Department of Justice, for HKSAR

The Appellant in person, present