HKSAR v. HUI CHI TONG

DCCC 1221/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1221 OF 2011

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Reasons for Sentence

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Charges and facts

1.  The defendant pleads guilty to having made counterfeit notes (Charge 1), tendered them (Charges 2, 3 and 5), as well as the custody of them (Charge 6).  All involved counterfeit notes of $100 and the serial number of either FV398622 or MH817158. 

2.  On 3 occasions in June 2011 and July 2011, he purchased foods from an elderly hawker by 6 counterfeit notes (Charge 2), 2 counterfeit notes (Charge 3), and 1 counterfeit note (Charge 5) respectively. 

3.  The police received a report from the hawker under Charges 2 and 3 and various business recipients, dating back to between February and July 2011.  He was arrested after the act under Charge 5.  A search of his underpants revealed a bag containing 4 counterfeit notes, resulting in Charge 6. 

4.  Alongside with the 2 genuine banknotes bearing the said serial numbers, 1 Brother printer, 1 HP all-in-one scanner copier printer, blank paper, cut paper, rulers, scissors and 1 paper cutter, in his flat were found 35 counterfeit notes.  Together with the 52 previously reported by the various business recipients, the 9 received by the elderly hawker and the 4 in his underpants, he had to have made 100 counterfeit notes.  He admitted to have made the counterfeit notes for use by photocopying the said genuine banknotes. The government chemist confirmed that the counterfeit notes were printed by inkjet printing. 

Personal background and mitigation put forward

5.  He is 37 years of age.  After completing F. 5 education, he worked as a bank clerk and then a property agent.  He was out of job when committing the present offences.  He had 4 convictions for counterfeit notes among a host of dishonesty offences.  The pattern does not indicate recidivism for dishonesty sufficient as an aggravating factor. 

Sentencing considerations

Basics

6.  Each of the offences of making counterfeit notes, tendering them as genuine, or having them in custody shall carry a maximum of 14 years’ imprisonment on conviction on indictment. 

7.  In HKSAR v Wong Hoi-yat [2006] 3 HKLRD 150, Yeung JA observed that relevant factors for sentencing included (at para 31):

(1) The scale of making the counterfeit notes;

(2) The face value and the quantity;

(3) The degree of semblance;

(4) The nature of equipment used and the productivity;

(5) The duration of the offence;

(6) The role of each accused and his background;

(7) The circumstances of the offence;

(8) The reason for the offence.

(This is my own listing)

Sentencing examples

8.  There are no sentencing guidelines as the circumstances of each case may vary tremendously. Counsel in mitigation has put forward 3 sentencing examples for my reference.     

9.  In HKSAR v Chan Yan-yip, DCCC 809/2009, the defendant used 13 counterfeit notes of $1,000 and 1 of $500 to pay a cooked food stall.  Arrested 3 months afterwards in his flat, he admitted that he had made them with a printer and genuine banknotes and then used them.  The court adopted a starting point of 3 ½ years.    

10.  In HKSAR v Yu Xi Zhen, DCCC 466/2010, the defendant tendered 1 counterfeit RMB¥100 on each of 9 occasions.  She was doing the same on the tenth when she was arrested.  She had another 47 on her when searched.  Her overall sentence for the 11 charges was 24 months on a plea.  (I regard that its being a case of Renminbi should make no distinction to our present case in view of the Court of Appeal’s comment in HKSAR v Hu Wanxia, CACC337 of 2008 in treating counterfeit notes of Renminbi, a currency growing fast in popularity and circulation in Hong Kong, every bit as serious as the Hong Kong currency.)

11.  In HKSAR v Li Ho-yin, DCCC 1349/2011, the defendant carried 20 counterfeit notes of $100 as he cleared the customs upon arrival.  He said they were found on a bus.  He intended to tender them as genuine.  The court took into account their poor quality and his opportunistic possession of them.  The court adopted a starting point of 2 ½ years. 

Sentencing this defendant

12.  To apply Yeung VP’s observations in Wong Hoi-yat (above), it can be seen that:

(1) The scale of making the counterfeit notes was small, only a domestic operation with an ordinary printer;

(2) The face value was only $100 and there were 61 used (ie 52 + 9) and 39 (ie 4 + 35) ready to be used;

(3) The degree of semblance was only as much as an inkjet printer could offer;

(4) The equipment was primitive and the productivity was low;

(5) The offence of making spanned over 6 months;

(6) He was a lone ranger with previous similar records that had not recurred until the present offences;

(7) The circumstances of the offence had no particular gravity;

(8) He committed the offences to make easy money literally with a face value of $10,000 in total.

13.  For the offence of making (Charge 1), I take a starting point of 3 ½ years.  One-third off for his plea of guilty, the sentence is 2 years and 4 months in the absence of effective mitigating factors. 

14.  For each offence of tendering (Charges 2, 3, and 5) and custody (Charge 6), I take a starting point of 3 years each.  One-third off for his pleas of guilty, the sentence is 2 years each. 

15.  Each act was distinct from the others.  Consecutive sentences shall be imposed.  However, by totality, I adjust the terms as follows:

(1) Charge 1: 2 years and 4 months;

(2) Charge 2: 1 month of which consecutive to other charges;

(3) Charge 3: 1 month of which consecutive to other charges;

(4) Charge 5: 1 month of which consecutive to other charges;

(5) Charge 6: fully concurrent with other charges;

(6) The overall sentence is 2 years and 7 months.