State v Yeung Sze Wai [1997] FJHC 229; Haa0079D.1997s (3 September 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)
Appellate Jurisdiction

CRIMINAL APPEAL NO. HAA0079 OF 1997

BETWEEN:

THE STATE
Appellant

AND:

YEUNG SZE WAI ALICE
FONG PAK HUNG
HO KWOK ON
Respondents

Mr. Wylie Clark for the Appellant
Mr. Joseph Maharaj for the Respondents

DECISION

This is an appeal by the State against leniency of sentences. The Respondents pleaded Guilty and were sentenced as follows:-

YEUNG SZE WAI ALICE

Count 1: Uttering forged credit card

18 months imprisonment suspended for 2 years.

Count 2: Obtaining goods value $115.00 by forged instrument

2 years imprisonment suspended for 3 years.

Count 3: Uttering forged credit card

18 months imprisonment suspended for 2 years

Court 4: Endeavouring to obtain goods value $2645 by forged instrument

2 years imprisonment suspended for 3 years.

FONG PAK HUNG

Count 5: Uttering forged credit card

18 months imprisonment suspended for 2 years.

Count 6: Obtaining goods value $1750 by forged instrument

2 years imprisonment suspended for 3 years.

HO KWOK ON

Count 7: Uttering forged credit card

18 months imprisonment suspended for 2 years.

Court 8: Obtaining goods value $1899.99 by forged instrument

2 years imprisonment suspended for 3 years.

ALL RESPONDENTS

Count 9: Possession of Unlawfully Issued Immigration Permit

All to pay $300 immediately in default 12 months' imprisonment. All to leave Fiji immediately. Recommended all escorted to Nadi Airport and placed on first available flight to Hong Kong.

Although there was some initial dispute, it was finally agreed by the parties that the Magistrate had made the sentences concurrent. The opposite impression had been gained by the police prosecutor and the press. By common consent the Magistrate's Record was grossly inaccurate throughout, constituting further unacceptable conduct by this Magistrate with reference to his Records of Proceedings before him.

FACTS

A conspiracy was hatched in Hong Kong by these 3 Respondents and 2 others, "to do some business" in Fiji with false credit cards and fake passports. 32 fake credit cards found in the Respondents' possession showed the size of the intended operation.

Following a plan the 3 Respondents arrived in Fiji on 2.8.97 using forged passports and obtaining an unlawfully issued Fiji Immigration Permit. The 2 others (only ever described as Paul & Jimmy) joined them on 5.8.97. On 6.8.97 all 5 hit Prouds in Suva obtaining perfume at $115, one gold necklace at $1750 and a second gold necklace at $1899.99, all using different forged credit cards.

Then they moved to Lords where the female Respondent proffered another forged credit card in an endeavour to obtain a necklace valued at $2645. The shop Management felt suspicious and tried to ring the Bank to confirm the validity of the card. All 5 melted away back to Nadi.

On 7.8.97 all 5 made the cardinal error of returning to the attack at Prouds at Sigatoka and started looking at jewellery. The shopkeeper tipped off police. Paul and Jimmy fled with some of the fake cards and the 2 gold bracelets valued at $3649.

The Respondents gave police no information to help identify the 2 other Chinese or to recover the 2 valuable gold bracelets.

SUBMISSIONS ON APPEAL

Counsel for the State submitted that these Sentences and Orders were manifestly inadequate. He said they were serious offences of their kind, and the sentences did not take account of that, nor the planning and complexity and sophistication of the offences and the manner in which they were carried out.

Suspending the sentences, the State argued, was no deterrent at all. Future offenders in organised crime rackets such as this was, will get the wrong message, it said. In the end all they got was a $300 fine and their departure from Fiji facilitated with no real punishment.

The State further submitted that custodial sentences were required in the case of all 3 Respondents, although some differentiation could occur in the case of the female Respondent who was of clear record.

It further submitted a united front with overseas countries was required to join in the fight against an increase in these types of offence.

Further, it was submitted the sentencing Magistrate showed no signs of having considered the proper basis in law for suspending the sentences.

In particular, he failed to give any weight to the previous convictions of the two male Respondents. His sentencing remarks betray no trace of his considering these matters.

If it was because of the Rehabilitation of Offenders (Irrelevant Convictions) Act of 1997 the Magistrate evinced no sign of his even knowing about it.

That legislation bans consideration of previous convictions after 10 years unless a Court makes an order letting them in. I allowed the State to apply instanter for such an order. I was satisfied that the tests under s. 24(4)(a), (b) and (c) of the Act were all satisfied.

Those tests were:-

(a) the conviction is relevant to the proceedings;

(b) justice cannot be done except by reference to the conviction;

(c) the need to refer to the conviction outweighs the protection this Act confers on the person with that conviction.

I allowed the whole of the male Respondents' criminal convictions to be looked at because they bore very heavily on the proper understanding of the criminality of the offences.

Mr. Wylie Clark, for the State, submitted the 2nd Respondent's record showed connection with organised crime in Hong Kong.

With my own special knowledge of Hong Kong from serving 6 years there as a Magistrate, I know that submission to be correct.

Operating vice establishments and being involved in drug offences are an almost certain sign of triad affiliation, but without going to the extent of finding that link, the record bespeaks an organised crime background of some sort.

The 3rd Respondent's convictions for offences involving fraud, namely evading liability by deception and fraudulent false accounting, are essential to know for proper sentencing in this matter.

The background of all three Respondents working in a girlie bar, the New Flower City Night Club in Hong Kong, connotes to me that they would well know all about credit card fraud, and that they would have a fair understanding of English despite submissions to the contrary.

Indeed Mr. Maharaj's submissions for all 3 Respondents that they were themselves victims of fraud by Paul and Jimmy and were themselves at first suspicious of the fake credit cards, I find totally unworthy of belief.

Mr. Clark, for the State also submitted that the sentencing Magistrate confused the tests to be applied for suspending sentence generally, citing R v Fisk (unreported) 2174-A-73 set out in Thomas "Principles of Sentencing" 2nd edition at pp. 244-247. There he said, it is made clear that the character of the accused is involved.

The accused, he submitted, must be either of clean record or out of trouble for many years as in R v Murdoch ibid. 2962-C-73 where it was 15 years.

The present Respondents did not fall into any of the categories for suspension of sentence.

Mr. Clark further submitted that the Magistrate took irrelevant factors into account.

Those included, it was submitted, the unreal possibility of prosecution in Hong Kong on the Respondents' return there, under the new regime, together with the strain on Fiji's penal system in having to provide a special diet, and a language difficulty.

Also it was submitted, the recommendation for deportation trespassed on the function of the Minister for Immigration.

Mr. Clark distinguished the case of suspended sentence in Naiveli v The State Cr. App. No. 4 of 1992 Fiji Court of Appeal, relied on by Mr. Maharaj; as having no bearing on the present case. (A police officer of unblemished record, had abused his office in evicting a defenceless woman and her children from their home - no-one to look after his farm if sent to prison.)

He also submitted that Fiji Courts will not be able to enforce the suspensions when the Respondents leave, if further offences are committed, and that shows the inappropriateness of the suspensions.

He quoted the case of Harbans Singh v The State Crim. App. No. 59 of 1991 where a 15 month sentence for fraud by an employee involving over $18,000 was upheld on appeal.

He submitted finally, that sentences in the region of 3 years would be appropriate.

Mr. Maharaj for the Respondents relied on personal hardship to them if custodial sentences were imposed. He endeavoured to bring them under the guidelines discussed in Thomas's text, in my view unsuccessfully.

The First Appellant, Yeung Sze Wai Alice's age is not shown anywhere in the Record. Mr. Maharaj in mitigation called her a young mother. There is a 7 year old son back in Hong Kong. She worked as a hostess in a girlie bar, the New Flower City Night Club in Hong Kong. She and Ho Kwok On the Third Appellant were alleged to be engaged and going to marry on their return to Hong Kong. It was claimed she had a mother to look after and a brother she "had to" support. No details were given of how this brother would "have to" be supported.

The Second Appellant, Fong Pak Hung, according to a fax from Hong Kong Police was born on 02/10/1962 and has a Criminal Record as follows:-

Convictions

1982 - Managing a Vice Establishment - Fined HK$3000.

1984 - Managing an unlicensed massage establishment - Fined HK$1000

- Managing a Vice Establishment - 3 months imprisonment susp. 2 years.

1985 - Assault with intent to Rob - 3 ½ years imprisonment.

1997 - Possession of Dangerous Drugs - Fined - HK$6000.

The Third Appellant, the boy-friend of the First Appellant was born on 11/12/1963 and has a Criminal Record as follows:-

Convictions

1984 - Evasion of Liability by Deception -Fined HK$300.

1992 - Driving whilst disqualified - Fined HK$1000.

1993 - Driving whilst disqualified - 1 month disqualified.

1995 - False Accounting - Fined HK$500.

That these Respondents with their backgrounds believed that the credit cards were genuine even for one moment, I refuse to believe. That they ever had doubts about the cards which worsened as they went along and that they hoped they would be genuine, I also refuse to believe.

That it was only when queried by the shopkeeper that they thought there was actual trouble but pressed on then irresponsibly, I also refuse to believe.

If this was really so, why did they all descend on the Sigatoka branch of Prouds the next day?

This shows to me that there is not the slightest genuine remorse, and is an attempt to play on the gullibility of the Magistrate. It will not work in the High Court.

DECISION

The principles for upholding an appeal by the State against leniency of sentence are well known. See e.g. Attorney-General's Reference No. 16 of 1992 where it was said:-

"We have come to the conclusion that on any view the sentence which the learned judge passed here was a lenient sentence".

"That however, is not sufficient to justify this Court interfering on a reference of this kind. It is salutary to remind ourselves of what was said by Lord Lane C.J. in an earlier case, Attorney-General's Reference No. 4 of 1989. In considering the approach of this Court to a reference under s.36 Lord Lane said this:-

"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased with all the anxiety that that naturally gives rise to merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the Judge, applying his mind to all the relevant factors, could reasonably consider appropriate."

See also Attorney-General's References Nos. 30 and 31 of 1992 (GODDEN and BOOSEY) 1993 14 Cr. App. R(S) 386 at 389-90:-

"This Court will not interfere with a sentence merely because it is somewhat lenient, or because it is more lenient than the sentence this Court might have passed were it sitting at first instance. The Court will only interfere where the sentence is unduly lenient, that is to say, outside the bracket of sentences which a judge could reasonably impose on the facts presented before him. We consider that this case falls into the category.

That being so, we also bear in mind that, when we consider what sentence ought to be substituted, we should have in mind that these offenders have already been sentenced before. They are being brought up for the second time to be sentenced further and they have had the added suspense of not knowing what the outcome may be, and the added anguish of having to come to Court and have their sentences amended."

And Smith v Luker [1992] 111 Federal Law Reports 99 at 103 - ".... referred to R. v. Okutgen (1982) 8 Australian Criminal Reports 262 at 265 where it was said:-

"Now, it is trite to say - and it is said in almost every appeal of this nature - that when sentencing a prisoner the trial judge is exercising a discretion and, on normal principles, a discretionary judgment made at a hearing is not set aside by a court of appeal unless the court is of opinion that the learned judge has taken into account things that be should not have taken into account or has failed to take into account things he should have, or has made some error in law. or even if an error his Honour has fallen into cannot be identified, on the face of it, the sentence imposed was so manifestly excessive that there must be some error in the sentencing discretion. In this case I am not able to detect a specific error in the learned judge's reasons for sentence. However, I have come to a clear view that the sentence imposed was of such as [sic] character that there must have been some error in the learned judge's reasoning for him to have arrived at the sentence that he did arrive.

Whether a sentence is manifestly excessive should be readily discernible. Generally speaking, it should arouse a spontaneous reaction of "Oh my gosh!" It has been said that "to describe a sentence as manifestly inadequate is something that is not capable of sustained argument. The inadequacy is either manifest or it is not ....". R v Taylor (1985) 18 A Crim. R. 14 at 17.""

I find that one only has to look at the circumstances of this case for it to strike one as a case of manifest inadequacy of sentence.

It hits one between the eyes, as it were, that this was a conspiracy between a female who associated with Hong Kong men with criminal records and 2 others whose identity they refused to disclose but who had access to false passports and fake credit cards to journey all the way to Fiji for the express purpose of descending upon unsuspecting and unsophisticated Fijian traders and defrauding them for who knows how much with forged credit cards.

This is manifestly not a case for suspended sentences. The First Appellant might have qualified for a suspended sentence except she led the charge on Prouds at Sigatoka the second day after they had all fled the day before. This shows determined criminality in the face of initial set back; I have differentiated her sentences slightly from the other 2 Respondents for the fact that she does have a clear record. The sentencing Magistrate failed to make this distinction as he should.

Looking at the penalty section for the offence of Uttering a Forged Document, it may be seen that the maximum punishment is the same as that for forging that particular document.

Reference to the penalty sections for Forgery s. 355 through to s. 341 of the Penal Code shows 14 years imprisonment as the maximum for forgery of certain documents (other than wills, deeds or currency which carry life) but nowhere included among them is a credit card.

Section 355(2)(a) mentions "any valuable security or assignment thereof or endorsement thereon or where the valuable security is a bill of exchange, any acceptance thereof".

The State wanted to rely upon this subsection and submitted that a credit card fell within the definition of a "valuable security".

"Valuable security" is defined in s. 4 of the Penal Code to includes writings evidencing title to stock annuities, funds etc, any security for the payment of money or any authority for the payment of money or for the delivery or transfer of goods or chattels, any receipt for the payment of money or the delivery of any chattel, or any document of title to land or goods.

I am of the view that a credit card is not among the documents described nor is it capable in its very essence of being described as a "valuable security".

It is interesting that the Forgery section creating the offence envisages the "valuable security" as being capable of assignment or endorsement in the hands of the holder. This may be the key to its nature. A credit card is not transferable and is owned by the issuing bank. It is more akin to a token.

In any event, if there is doubt about the definition, it is in accordance with authority to construe it in favour of the liberty of the subject.

I accordingly, class the credit cards in this case under s. 341 of the Penal Code which covers forgery of documents not made a felony under the earlier sections.

In this section the offence is a misdemeanour, punishable under s. 47 of the Penal Code with 2 years' imprisonment or a fine or both.

Of course the offences of Obtaining or Endeavouring to Obtain Goods by virtue of a forged instrument are punishable by 14 years' imprisonment.

I accordingly uphold the State's submissions in their entirety.

I quash the Magistrates Court's sentences and orders with the exception of the fines of $300 on each Respondent in default 12 months imprisonment on Count 9.

In lieu thereof the following sentences are imposed:-

YEUNG SZE WAI ALICE

Count 1: 3 months' imprisonment

Count 2: 9 months' imprisonment

Count 3: 6 months' imprisonment

Count 4: 18 months' imprisonment

All sentences to be concurrent.

FONG PAK HUNG

Count 5: 12 months' imprisonment

Count 6: 3 years' imprisonment

Both sentences to be concurrent.

HO KWOK ON

Count 7: 12 months' imprisonment

Count 8: 3 years' imprisonment

Both sentences to be concurrent.

Order any property recovered returned to its rightful owner.

Hon. Justice K.J. Townsley
Puisne Judge

Suva
3rd September, 1997

HAA0079D.97S