IN THE SUPREME COURT OF HONG KONG
APPLICATION FOR REVIEW NO. 1 OF 1974
Coram: Briggs, C.J., Huggins & McMullin, JJ.
Date of Judgment: 3rd July 1974.
1. This is an application to the Full Court by the Attorney General for the review of a sentence.
2. The respondent, LAM Pun-ho was charged with two offences of forgery contrary to section 71(3)(L) of the Crimes Ordinance, Cap. 200. At the relevant time he was a driving instructor attached to the Transport Department. The particulars of the offenceswere that he forged two provisional driving licences. He was sentenced to a fine of $1,500 for each offence with imprisonment fortwo months in default of payment. The dates of the two offences were the 11th and 16th October, 1973 respectively.
3. The facts of the case are simple. Two members of the public, CHUI Ng-hau and MAK Kay, were in possession of provisional driving licenceseach of which bore a photograph of the holder. They were both desirous of obtaining a valid driving licence which meant that theywould have to pass a driving test. The respondent was their driving instructor and in order to be sure that valid driving licenceswould be issued it was agreed that an experienced driver would take the test in place of CHUI Ng-hau and Mak Kay. The two men producedtheir provisional driving licences to the respondent who removed the photographs which were already on the provisional driving licencesand substituted therefor the photograph of another person. That other person then took the test and passed the test making use ofthe forged provisional driving licence in each case. Subsequently, the correct photograph was put on the provisional driving licenceand they were presented to the Transport Department where they were to be exchanged for valid driving licences. Another driving instructor,one HUNG Tung Choi, was also involved in these offences. He was found guilty in another case of uttering the two forged provisionallicences to which I have referred above. And CHUI Ng Hau was found guilty of the forgery of one of the provisional licences. Foruttering the two provisional driving licences, the driving instructor HUNG Tung Choi was sentenced to a total of two years’ imprisonment.For forging his provisional licence CHUI Ng-hau was sentenced to six months’ imprisonment.
4. HUNG Tung Choi appealed against the sentence of two years’ imprisonment when it was reduced to eighteen months.
5. We think that the respondent in this case received too light a sentence taking all the circumstances into consideration. It was admittedin the other case that the most serious aspect of the case was the uttering of the forged documents. However, from the evidence inthe present case it is apparent that the respondent was the first contact made between the corrupt members of the public and theTransport Department. He was not only a first contact he was an essential part of the scheme, since he was the driving instructorof those persons, and indeed he received $1,100 in respect of one of the forgeries.
6. We consider that this is a case which warrants a custodial sentence. And we consider that the gravity of the respondent’s offenceis close to that of HUNG Tung Choi. As the matter stands at the present there is an undue disparity between the sentence of the respondentand that of HUNG Tung Choi. While such disparity is not a ground upon which this Court would interfere upon an application for reviewany more than it would upon an appeal against sentence, it is, of course, always relevant as it puts the court upon inquiry: at leastone of two or more unduly disparate sentences must be wrong.
7. The respondent gave himself up to the police and pleaded guilty. He is a man of 50 and the sole support of his family. He has alsoa history of recent illness.
8. Taking all this into consideration and also taking into consideration that a long time has past since these offences were committedwe think that the correct sentence to pass is one of imprisonment and with some hesitation we fix the term at not more than fourmonths on each charge, the sentences to run consecutively. The fines, if already paid, are to be returned to the respondent.
Lucas, D.D.P.P., for Crown/Appellant.
Sparrow (John Ip & Co.) for Respondent.