Case Detail

CACC 44/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 44 OF 2004

(ON APPEAL FROM DCCC NO. 949 of 2003)

____________________

BETWEEN

	HKSAR	Respondent
	and
	Lam Wai Ming (林偉明)	Appellant

____________________

Before: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 26 October 2006

Date of Judgment: 26 October 2006

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1. On 20 January 2004, the appellant was sentenced to 4 years and 6 months’ imprisonment following his conviction after trial in the District Court on a charge of having in his custody or under his control with intent, on 17 July 2003, 530 counterfeit $100 banknotes, contrary to section 100(1) of the Crimes Ordinance, Cap. 200. His applications for leave to appeal against conviction and sentence were dismissed by this court on 30 September 2004 for reasons which were handed down on 13 October 2004. This was followed by an application to the Court of Final Appeal for leave to appeal against conviction which was refused on 15 December 2004.

2. The case has now been referred back to this court following a petition to the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221, the relevant provision of which is as follows:

“(1) Where a person has been convicted on indictment … the Chief Executive may, if he thinks fit, at any time either-

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; …

……

(3) For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”

3. The ground of appeal advanced by Mr Caesar Lo, on the appellant’s behalf, is that the trial judge “wrongly enhanced” sentence when there was “insufficient evidence” to prove that the offence which the appellant had committed was “prevalent” under the terms of section 27 of the Organized and Serious Crimes Ordinance, Cap. 455 (“OSCO”).

4. The prosecution had applied on 20 January 2004, pursuant to a notice under section 27(2) and (11) of OSCO for enhancement of sentence on the ground of the prevalence of offences in relation to inkjet printed counterfeit banknotes. For present purposes, an offence brought under section 100(1) of the Crimes Ordinance is, by virtue of Schedule 1 paragraph 11 of OSCO, a ‘specified’ offence which enabled the judge, if he saw fit to do so, to enhance the sentence. In the event, the sentence imposed on the appellant included an enhancement by fifty percent following the guidance issued by this court in HKSAR v Yip Kwok-fai, CACC 306/2002.

5. The prosecution had been able to establish ‘prevalence’ based upon the information set out in three statements made by Chief Inspector Yu Shi-cheung which were agreed by the defence and read to the judge under the provisions of section 65B of the Criminal Procedure Ordinance. However, the basis on which this was established has subsequently been criticised and has led to the present proceedings.

6. Almost two years later, it was held in HKSAR v Chan Ka-kin and Anor, CACC 474/2004, when granting leave and allowing the appeals against sentence, that:

“99. In determining the prevalence or otherwise of the specified offence, what should be considered is the substance of the offence. It is the prevalence of the conduct constituting the specified offence that we are concerned with.

100. Whilst the prosecution need not prove prevalence in terms of the numbers of the offences contrary to a particular statutory provision, which is a specified offence, the prosecution must prove beyond reasonable doubt the prevalence of the conduct constituting the specified offence before s 27 of OSCO is triggered.

101. Chan was charged with offences contrary to ss 100(1) and 101(1) of the Crimes Ordinance and the substance of the allegation was that he had in his custody or control, counterfeit banknotes printed with colour inkjet printers with intent to pass them as genuine, and materials and implements to make such counterfeit notes again with intent to pass them as genuine. (Emphasis added)

102. However, Chief Inspector Yu’s evidence only referred to the number of seized counterfeit banknotes manufactured with colour inkjet printers. Such evidence was also consistent with the prevalence of the conduct constituting offences under s 100(2) and s 101(2) of the Crimes Ordinance – offences that do not require the element of ‘with intent to pass them as genuine’.

103. Ss 100(2) and 101(2) are of course not specified offences under OSCO. Indeed, even s 101(1) is not a specified offence at all.

104. On Chief Inspector Yu’s evidence, the judge was not entitled to conclude that the specified offence, namely the custody and control of counterfeit banknotes with intent to pass them as genuine was prevalent. The judge’s conclusion that the 2^nd charge was a specified offence was simply wrong.

105. Mr Michael Poll, counsel for the respondent, fairly conceded this point. He, however, properly referred us to HKSAR v Yip Kwok-Fai, unreported, CACC 306 of 2002, in which the Court of Appeal appeared to have simply relied on the evidence that the number of counterfeit $10 coins had risen significantly to justify the conclusion that the offence of having custody or control of counterfeit coins with intent, contrary to s 100(1) of the Crimes Ordinance, was prevalent.

106. We would only comment that the applicant in Yip Kwok-Fai was not legally represented and the point in issue was not argued or considered.

107. Offences involving counterfeit banknotes and offences involving false passport are extremely serious offences. Chan committed both types of offences and there was hardly any mitigating factor. The sentences imposed on Chan must reflect those aggravating factors.

108. However, we were not persuaded that the judge was right to enhance the sentences on the 1^st and 2^nd charges under s 27 of OSCO at all.

109. The 2^nd charge was not a specified offence. The evidence adduced by the prosecution did not prove beyond reasonable doubt that the 1^st charge was prevalent either. In the circumstances, the judge’s order, enhancing Chan and Lai’s sentences on the 1^st and 2^nd charges, must be set aside.

110. Whilst the 4-year concurrent sentences on the 1^st and 2^nd charges and the 12 months and 2 years’ concurrent sentences on the 3^rd and 4^th charges with 14 months to run consecutively to the 4 years remain, we set aside the enhanced 16 months’ consecutive sentence on the 1^st and 2^nd charges.”

7. It was as a result of that decision, adopted in HKSAR v Chen Zhu-shan [2006] 3 HKLRD [H8], that this matter was made the subject of a petition to the Chief Executive.

8. We pause to make two remarks. The first is to correct a suggestion made today in argument. The decision in Chan Ka-kin and Anor did not represent a change in an understanding of the law. It merely pointed out that which had been overlooked in practice that, if it was proposed by the prosecutor to prove the prevalence of offences under section 100(1) of the Crimes Ordinance, the evidence produced to that end had to relate to that offence to the exclusion of others of a similar kind. The second point, which we are grateful to Mr Goodman for drawing to our attention, is that the statement at paragraphs 103 and 109 of that judgment that section 101(1) and (2) were not specified offences was, with respect, an oversight because the offences in section 101(1) and (2), are rendered ‘specified’ offences by reason of schedule 2, paragraph 8, of OSCO.

9. For present purposes, it was conceded that the statistics which were placed before the sentencing judge did not specifically relate to the prevalence of offences which had been committed contrary to section 100(1) of the Crimes Ordinance. This is apparent from the way Lugar-Mawson J set the matter out when giving the judgment of this court and dismissing the appellant’s original application for leave to appeal. He stated as follows:

“26. The statistics provided to the Judge showed that in 2003 a total of 15,719 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized in Hong Kong, 11,650 of that total were counterfeit $100 banknotes. In 2002, the figures show that a total of 19,396 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized, of which 14,125 were counterfeit $100 banknotes. The statistics also show that in 2003, 15 persons were prosecuted for offences relating to counterfeit $100 banknotes, whereas only 7 persons were prosecuted in 2002. The 1999 figure was 3 persons and it was only in the year 2000 that the number of persons prosecuted – 14, approached the 2003 figure. The Chief Inspector’s statistics also showed that in 2003 there was a rising trend in the number of counterfeit $100 banknotes produced on colour inkjet printers. The counterfeit banknotes involved in this case were produced by this method. In January 2003, 462 counterfeit banknotes so produced were seized; by December the monthly seizure figure had risen to 1,695 counterfeit banknotes.

27. It is true, when the 2003-2002 figures are compared together, that in 2003 there was a drop in total numbers of counterfeit banknotes seized. However, when those figures are compared with the 1999 figures of a total number of counterfeit banknotes of 6,519 and counterfeit $100 banknotes of 2,032, as well as with the figures for the number of persons prosecuted for offences relating to counterfeit $100 banknotes, and the figures showing a rising trend in the number of counterfeit $100 banknotes produced on colour inkjet printers, the Judge’s conclusion at the time of the Applicant’s sentencing that offences relating to counterfeit banknotes were prevalent in Hong Kong was an inescapable one. Clearly there remained a need to invoke the provisions of the Organised and Serious Crimes Ordinance to deter others from committing such offences.”

10. In the light of the Court of Appeal’s decisions in Chan Ka-kin and Anor and in Chen Zhu-shan (above), Mr Goodman sought to adduce fresh evidence under the provisions of section 83V of the Criminal Procedure Ordinance with a view to showing that although the original application for enhancement was advanced upon a basis which has since been disapproved, nevertheless if all the statistics which could have been placed before the trial judge had been provided in proper form, the picture would still have revealed that this was a prevalent offence.

11. In short, Mr Goodman’s submission was that the affirmations and statement now provided by Chief Inspector Yu demonstrate, from statistics which have been updated, that in view of the number of persons prosecuted and the number of counterfeit banknotes involved in relation to offences brought under section 100(1) of the Crimes Ordinance, offences of this kind were prevalent. The figures he gave us taken from Chief Inspector Yu’s statement dated 29 June 2006 are that for the year 1999, 141 counterfeit banknotes were involved and 5 persons were prosecuted; in 2000, 25 persons were prosecuted involving 8,149 counterfeit notes; in 2001, the figures dropped to 5 persons prosecuted and 220 counterfeit notes; in 2002, 9 were prosecuted and 766 counterfeit notes were involved; and in 2003, there were 1,122 counterfeit banknotes (including those in this case) and 16 persons were prosecuted. These figures are in stark contrast to those which were set out by Lugar-Mawson J (above at para. 9) as having been placed by agreement before the sentencing judge.

12. The application to adduce fresh evidence was opposed by Mr Lo who submitted that it was the prosecution’s duty at the time of sentencing to provide the court with sufficient and cogent evidence of prevalence. By failing to distinguish between figures relating to counterfeit banknotes which arose from specified offences as opposed to other offences which were not specified, he contended that it was too late to rely on figures which only now reflected the true position.

13. Section 83V(1) of the Criminal Procedure Ordinance provides as follows:

“For the purposes of this part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice –

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection(3), receive the evidence, if tendered, if any witness.”

14. We have considered the evidence which the respondent has sought to adduce de bene esse. In all the circumstances, we consider that it is in the interests of justice that the evidence should be admitted. To find otherwise, in our view, would be to exclude relevant and admissible evidence which goes to the heart of the decision we have to make.

15. We are not satisfied, however, that the evidence, now properly produced, has established that the offence for which the appellant was sentenced, namely the ‘specified’ offence brought under section 100(1) of having counterfeit banknotes in his custody or under his control with intent, was prevalent. Accordingly, as the appellant’s sentence was enhanced on a mistaken factual basis, the appeal is allowed. The sentence, therefore, is reduced to 3 years’ imprisonment to remove the element of enhancement.

(M. Stuart-Moore)
Vice-President

(Frank Stock)
Justice of Appeal

Mr Graham D Goodman, SGC, of the Department of Justice, for the Respondent.

Mr Caesar Lo Chi Lam, instructed by Messrs Clarence Wong, Cheung & Liu, assigned by Director of Legal Aid, for the Appellant.

CACC 44/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 44 OF 2004

(ON APPEAL FROM DCCC 949/2003)

____________

BETWEEN

	HKSAR	Respondent
	and
	LAM WAI MING（林偉明）	Applicant

____________

Before: Hon Cheung & Yeung JJA, and Lugar-Mawson J in Court

Date of hearing: 30 September 2004

Date of judgment: 30 September 2004

Date of handing down reasons for judgment: 13 October 2004

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REASONS FOR JUDGMENT

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Hon Lugar-Mawson J: (giving the judgment of the Court)

1. On 30 September 2004, we dismissed the Applicant, Lam Wai Ming’s application for leave to appeal against conviction and sentence. We now set out our reasons for our decision.

Background

2. The Applicant was charged with one count of being in custody or control of counterfeit currency notes or coins with intent, contrary to section 100(1) of the Crimes Ordinance Cap. 200. He was tried at the District Court before Judge Wesley Wong and was convicted on 20 January 2004. On the same day, after invoking the provisions of the Organised and Serious Crimes Ordinance, Cap 455 the Judge sentenced him to serve 4½ years’ imprisonment for this offence.

3. The Applicant sought leave to appeal against both his conviction and sentence. Mr. Edwin Choy represented him; he was not his counsel at trial.

Prosecution case

4. The prosecution case was that during a police raid on 17 July 2003, a black plastic bag containing $53,000 in face value of counterfeit Hong Kong $100 banknotes was found under Applicant’s bed in his room at the Yim Yeung Tin Singing House, in Temple Street, Mongkok, where he worked. He had led the police to find them there. On the discovery of these counterfeit banknotes, and after caution, the Applicant took another counterfeit $100 banknote out of a drawer and told the police that a man called Ying Kit had brought them to him at the premises, and that the price for each counterfeit banknote was $25, but he had not yet paid for them.

Defence case

5. The Applicant gave evidence. His case was that on the night before the police raid, a woman cleaner had found a bag containing banknotes, which one of Ying Kit’s followers had left behind. She had handed the bag to the Applicant. He did not know that the banknotes were counterfeit. He had stored the bag under his bed, before doing so he had taken one out to look at it. He had tried to return the bag to Ying Kit, but before he could do so the police had raided his room. He had not made the admission the police said he had.

6. The woman cleaner (DW2) also gave evidence on the Applicant’s behalf. She said that her working hours were from 8 p.m. to 2 a.m. In the early morning of 17 July 2003, while she was cleaning the table near the ladies' toilet, she saw a black bag underneath it. She took it out and looked inside it. Inside she saw something like money. She described its’ appearance. She took it up to the mezzanine floor and handed it to the Applicant. She showed the Applicant where she had found the bag.

7. The Judge rejected the evidence of both the Applicant and his witness, and found the case against the Applicant proved beyond reasonable doubt.

Grounds of appeal against conviction

8. The two grounds of appeal filed in support of the application for leave to appeal against conviction relate to alleged errors in the Judge’s Reasons for Verdict.

9. The first ground of appeal claims that the Judge fell into error when in rejecting the Applicant’s evidence he said:

“I do not believe, and I reject, his defence that those counterfeit banknotes were left behind by “Ying Kit” and his party the night before. I consider that to be a creation of his own imagination based on what he said to DPC 20308 in reply to the caution. Had that been true, I would have no doubt that he would tell the Police Inspector right away when he handed the Police Inspector the black bag. Not only did he not tell the Woman Inspector there and then, he did not put forward his defence to the duty officer in Yau Ma Tei Police Station and Wan Chai Police Station: nor did he offer his explanation to the Magistrate (emphasis supplied).”

10. Mr. Choy argues that it is impermissible for a court to test a defendant’s credibility on the basis of his failure to disclose his defence before trial.

Discussion - first ground

11. As to the first ground of appeal; this Court in HKSAR v. Del Carmen [2000] 2 HKC 431, reviewed the authorities at length and concluded that common law precedent does not permit a judge to make any comment to a jury inviting them to use the fact that a defendant relied on a defence at trial which he had not earlier disclosed to the prosecution. This Court was of the view in Del Carmen that changes to the law made in England in the mid-1980’s could usefully be introduced into Hong Kong law. That has not been done and whatever the position may now be in England, the common law position still applies in Hong Kong. In Hong Kong, subject only to well known limited exceptions, such as a judge’s power to comment on the effect of defendant’s failure to give evidence, an accused’s right of silence when first accused of a crime is still regarded as sacrosanct.

12. In Del Carmenthe judge directed the jury that, although they could not use the defendant’s failure to disclose her defence to find that she was guilty, they could use her failure to disclose that defence in considering whether or not, in their view, that failure affected the defendant’s credibility. This was held to be a misdirection, and it was only by applying the proviso contained in s.83(1) of the Criminal Procedure Ordinance, Cap 221 to what was described as case containing “strong circumstantial evidence” that this Court dismissed the appeal.

13. This is not the situation we are faced with in this present case. In Del Carmen, the appellant had exercised her right of silence when first accused of the offence and reserved her defence to trial. Here the Applicant had not exercised his right of silence. According to the prosecution witnesses, at the time of his arrest he had made inculpatory admissions to the police about how he came to be in possession of the counterfeit banknotes found in his room. The Applicant, although accepting that he had spoken to the police about this, claimed that the police had fabricated his inculpatory remarks and that he had said something entirely different. The Judge had to decide whether or not he believed him. By his use of the phrase “Had that been true…” at the start of the impugned passage from his Reasons for Verdict the Judge made it clear that he was addressing his mind solely to that issue. He decided that he did not believe the Applicant, taking the view that had his version been true then he would have proffered it to persons in authority, such as the Woman Police Inspector who led the police party, or the Station Duty Officers at the police stations where he was processed after arrest, or the magistrate on his first remand, something which the Applicant accepted he had not done.

Discussion - second ground

14. The impugned passage in the Judge’s Reasons for Verdictreads:

“To support his defence (the Applicant) called (DW2) to give evidence. It is easy to give a broad description of the story, but when it comes to details, her evidence became most unconvincing. She said that on 18 July 2003 she did not know the defendant was arrested, and she asked the defendant what happened and the defendant told her there was a lot of police, but on the 18^th the defendant was already in custody. She said the fake notes were lying flat in the bag, partly bent; but that was contrary to the pictures depicting the notes inside the bag. I reject her evidence in total.” (emphasis supplied)

15. DW2 was asked nothing in examination in chief about when she found out that the Applicant had been arrested. In cross-examination she was asked:

“Q. I want to ask you did you ever find out that Mr. Lam, the defendant, was arrested by the police?

A. I didn’t know. Even on the 18^th when I reported duty I looked for Mr. Lam.

Q. Did you ever find him?

A. it was not until a week later I met Mr. Lam again.”

Q. What happened then?

A. I asked Mr Lam what had happened on the 17^th as I was curious to know.

Q. And what happened then?

A. Mr Lam told me that on that evening many police officers arrived and did a lot of things but I can’t give an account of it. Something like searching. He asked me not to worry and I could continue to work there.”

16. Later, prosecuting counsel asked her:

“Q. Well, you knew that Mr. Lam had been arrested didn’t you?

A. Mr. Lam mentioned this when I went off duty on the 18^th.”

Q. And he also told you it was about the counterfeit banknotes.

A. He did not mention any thing about counterfeit banknotes.

Q. Didn’t he tell you it was in relation to the banknotes in the bag?

A. He did not say that on the evening of the 18^th he just said that a lot of police officers came for a search on the 17^th.

Q. “The first time that you would have seen Mr. Lam would have been some time after the 21^st is that right?”

A. “To my recollection it was not until a week later I met Mr. Lam again.”

17. At this point, the Judge intervened and the following exchange took place:

“Q: Didn’t you say that on the 18^th you asked Mr. Lam what happened and the defendant said there were lots of police?

A: No, no, no. No, no. The situation was that on the 18^th when I reported to duty I have to look for Mr. Lam but I couldn’t find him. I couldn’t find him.

Q: That was not what you said earlier, is it?

A: I wanted to ask him what happened on the 17^th when I was not on duty and I tried to look for him but I could not find him.”

18. In a further exchange between judge and counsel, the Judge appeared to agree with defence counsel’s interpretation of DW2’ evidence that she had said her meeting with the Applicant was not on 18 July 2003, but a week later.

19. From the above Mr. Choy argued that it is clear that DW2 was saying that she looked for the Applicant on 18 July 2003, but could not find him and that she did not meet him again until a week later.

20. We agree with Mr. Choy that it appears from the transcript that the Judge, when he said in his Reasons for Verdict that DW2 had said she had spoken to the Applicant on 18 July 2003, misstated DW2’s evidence on this issue. It would also appear that he was in error when he used the fact that it would have been impossible for DW2 to speak to the Applicant on the 18^th because he was in police custody on that day as a reason to disbelieve her. However, this issue, which formed no part of the defence case, appears to us to have been a purely peripheral one. Neither was it the only reason why the Judge disbelieved DW2’s evidence; her account of how the banknotes were laid inside the bag was not bourn out by the photographs of the exhibits. Although the Judge fell into error it was not of such severity as to call for intervention by this Court.

Decision on the application for leave to appeal against conviction

21. For the reasons given we were of the view that there was no substance in either ground of appeal and we dismissed the Applicant’s application for leave to appeal against his conviction.

Appeal against sentence

22. When sentencing the Applicant, the Judge adopted a starting point of 3 years’ imprisonment. He then said that in view of the prevalence of the type of offence the Applicant had committed he was enhancing the sentence by a further 50% under the provisions of the Organised and Serious Crimes Ordinance and sentenced the Applicant to serve a total of 4½ years of imprisonment.

Grounds of appeal against sentence

23. Before the sentencing hearing, the prosecution had served on the Applicant a notice of intention to furnish information pursuant to section 27 of the Organized and Serious Crimes Ordinance and had provided both the Court and the defence with three witness statements given by a Chief Inspector of Police. In these statements, the Chief Inspector produced statistics showing (inter alia) the number of counterfeit Hong Kong $100 banknotes which had surfaced in Hong Kong and been seized by the police. He also provided statistics of the number of persons prosecuted for offences connected with counterfeit Hong Kong $100 banknotes.

24. Mr. Choy did not dispute that the offence of possession of counterfeit banknotes with intent is a serious one and that the statistics show that such offences persist in spite of the police’s efforts to eradicate them. Neither did he take issue with the Judge’s starting point of 3 years’ imprisonment. It was, however, his contention that the statistics provided to the Judge were insufficient to support the proposition that these offences are prevalent.

Discussion

25. We do not agree; the principles governing a Judge’s use of his powers to enhance sentences under the provisions of the Organised and Serious Crime Ordinance are set out in this Court’s decision in HKSAR v. Wong Fung Ming and Anor CACC515 of 2001 (unreported). There is no doubt that it both an extraordinary power and a draconian one, and it is a power that should only be used where there is cogent evidence both that that the offence in question remains prevalent at the date of an accused’s sentencing and that there is demonstrable need by its exercise to deter others from committing that offence.

26. The statistics provided to the Judge showed that in 2003 a total of 15,719 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized in Hong Kong, 11,650 of that total were counterfeit $100 banknotes. In 2002, the figures show that a total of 19,396 counterfeit Hong Kong banknotes in denominations ranging from $20 to $1,000 were seized, of which 14,125 were counterfeit $100 banknotes. The statistics also show that in 2003, 15 persons were prosecuted for offences relating to counterfeit $100 banknotes, whereas only 7 persons were prosecuted in 2002. The 1999 figure was 3 persons and it was only in the year 2000 that the number of persons prosecuted – 14, approached the 2003 figure. The Chief Inspector’s statistics also showed that in 2003 there was a rising trend in the number of counterfeit $100 banknotes produced on color-ink-jet printers. The counterfeit banknotes involved in this case were produced by this method. In January 2003, 462 counterfeit banknotes so produced were seized; by December the monthly seizure figure had risen to 1,695 counterfeit banknotes.

27. It is true, when the 2003-2002 figures are compared together, that in 2003 there was a drop in total numbers of counterfeit banknotes seized. However, when those figures are compared with the 1999 figures of a total number of counterfeit banknotes of 6,519 and counterfeit $100 banknotes of 2,032, as well as with the figures for the number of persons prosecuted for offences relating to counterfeit $100 banknotes, and the figures showing a rising trend in the number of counterfeit $100 banknotes produced on color-ink-jet printers, the Judge’s conclusion at the time of the Applicant’s sentencing that offences relating to counterfeit banknotes were prevalent in Hong Kong was an inescapable one. Clearly there remained a need to invoke the provisions of the Organised and Serious Crimes Ordinance and deter others from committing such offences.

28. Mr. Choy also questioned the need for the enhancement to be as high as 50% of the starting point sentence. We note, however, that in HKSAR v. Yip Kwok Fai CACC 306 of 2002 (unreported), a case involving possession of counterfeit coins with intent, this Court opined that for future offences against section 100(1) of the Crimes Ordinance a 50% enhancement would be justified.

Decision on the application for leave to appeal against sentence

29. For the reasons given we were satisfied that there was no merit in the application for leave to appeal against his sentence and we dismissed it.

(Peter Cheung)
Justice of Appeal

(Wally Yeung)
Justice of Appeal

(G. J. Lugar-Mawson)
Judge of the Court of First Instance

Mr G D Goodman, SGC, for the Respondent

Mr Edwin Choy, instructed by Messrs Clarence Wong Cheung & Liu, for the Applicant

Remarks: Application for leave to appeal by the Applicant to Court of Final Appeal. Leave to appeal refused. Please refer to the appeal judgment of FAMC56/2004.

HKSAR v. LAM WAI MING

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