HKSAR v. MARISTELA RHEA NERISSA CURBI AND ANOTHER

DCCC 20/2021

[2021] HKDC 1359

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 20 OF 2021

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Reasons for Sentence

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1.  Both defendants have been convicted after trial of 3 offences, the same offence, passing or tendering a counterfeit currency note. I do not intend to repeat all the facts; I have covered them in my Reasons for Verdict.

2.  I found the defendants both guilty of tendering a counterfeit HK$500 note on 3 occasions in 3 shops on 20 June 2020 within a few hours.

3.  The only issue during the trial was whether the defendants had the requisite knowledge or belief that they had passed or tendered counterfeit notes.  The rest of the prosecution’s evidence was admitted.  It was admitted that the notes were counterfeit and that they did tender or pay for food and services on those 3 separate occasions. There were video-recorded interviews conducted after arrests and they were also not challenged. 

4.  I rejected the defendants’ explanations in their interviews and found the account. Given under caution to be fictional and fanciful, given to distance themselves from the offence by blaming a stranger for giving them the counterfeit notes during the sale of a pair of shoes.

5.  I found the defendants did knowingly pass over three HK$500 notes which were counterfeit, a total of HK$1,500, for the purchase or payment of food or services for which they received a significant amount of clean money or tender in the form of change.  I found they chose places that were busy or perhaps not as vigilant to counterfeit money.

6.  I found the facts proved and the CCTV footage of their actions were enough to allow me to draw the only inference that they knew or believed the money they tendered was counterfeit beyond reasonable doubt.  I convicted them both after trial.

Mitigation

7.  I have heard full mitigation on behalf of both defendants.  Defence counsel have said all they can say.  Offences of this nature do not have any guidelines in sentencing, but these offences are serious in that they affect the financial system and reputation of Hong Kong.  They merit a deterrent sentence in the form of a term of imprisonment.

8.  The 1^st defendant is 26 years old, single, was born in the Philippines and has been in Hong Kong half her life.  She is single but has 2 young children with an ex-boyfriend who live with him and his family.  She is a Hong Kong Identity Card holder.  She has 3 previous convictions relating to possession of dangerous drugs and gambling.  She has no similar convictions.  She has family in court to support her.  Ms Mohamed has said all she can say in mitigation on her behalf.

9.  The 2^nd defendant is 37 years old, single and also born in the Philippines.  He also has family living here in Hong Kong.  He came here in 2010 as a tourist and has never left.  He married twice since and has a young child by his second wife.  They have since left Hong Kong.  He is a Form 8 holder, having claimed asylum in 2016.  He was first convicted in Hong Kong in 2015 for a breach of his condition of stay.  In 2018, he was convicted of theft as he was in 2019 and 2021.  He has 2 other convictions for gambling. Ms Yip has said all she can say in mitigation on his behalf.

10.  The factors I consider relevant to sentencing, other than mitigation put forward, is the amount involved, the number of counterfeit notes and the loss suffered by innocent businesses.  In particular, the hair salon was a small self-owned business and I am sure the owner could ill-afford to lose money in that fashion to fraudsters.

11.  After careful consideration of the facts, mitigation and the factors I have found relevant, I find a starting point of 2 years’ imprisonment appropriate for each charge.

12.  There is an additional aggravating factor as far as the 2^nd defendant is concerned; Ms Yip is in agreement and has nothing to add to this.  He is a Form 8 holder in Hong Kong and committed these offences whilst awaiting his refugee status claim to be processed.  However, he has abused the hospitality and liberty offered by the Hong Kong Government in committing these offences.  It has been said by the Court of Appeal that this is an aggravating factor and sentence should be enhanced for this. Enhancements have ranged from a few months to up to a year.  However, there are no guidelines for enhancement.  Obviously, the more serious the offence and its impact on the community and Hong Kong’s reputation, the greater the enhancement.  I enhance the starting point of 2 years for the 2^nd defendant for each charge by 3 months.

13.  The defendants have been convicted after trial and I have not heard any mitigation that merits any discount from the starting points I have found appropriate.  I have considered the totality principle and the fact that all 3 offences were committed on the same day and are the same in nature.

14.  Accordingly, the 1^st defendant is sentenced to 2 years’ imprisonment for Charges 1, 2 and 3.  I order all 3 sentences to be served concurrently, therefore the 1^st defendant is sentenced to 2 years’ imprisonment.

15.  The 2^nd defendant is sentenced to 2 years and 3 months’ imprisonment for Charges 1, 2 and 3.  I order all 3 sentences to be served concurrently, therefore the 2^nd defendant is sentenced to 2 years and 3 months’ imprisonment.