HKSAR v. HO YIN FUNG

 DCCC686/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 686 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to 3 offences, namely 1 charge of "Making counterfeits of currency notes" (Charge 1) and 2 charges of "Passing or tendering counterfeits of currency notes" (Charges 3 and 4).  Charges 2 and 5 are also related to counterfeit currency notes.  The Prosecution did not proceed with those 2 charges and has applied to leave them in court file.

Background

2.  Between late July and early December 2008, staff members of Kowloon Motor Bus ("KMB") found a total of 44 suspected counterfeit $10 notes in the cash collection boxes of KMB buses.  The matter was reported to the Commercial Crime Bureau ("CCB") of the Hong Kong Police Force.  Drivers of the affected bus routes were alerted to watch out for counterfeit $10 notes.

3.  Upon examination of the 44 $10 notes, a police counterfeit expert confirmed that they are all counterfeits printed by colour inkjet printer.  Their quality is poor and they lack any simulation on the security features of a genuine $10 note. 

Charge 4

4.  At about 7:30 pm on 11 December 2008, Mr. WONG Kwok-keung (PW1) was driving a KMB bus serving route number 276B, the fare of which was $8.  The defendant (who was in school uniform) boarded the bus outside Sheung Shui MTR Station.  He dropped a $10 note into the cash collection box.  PW1 noticed that the $10 note bore uneven edges and suspected its authenticity.  He immediately reported his suspicion to the KMB control centre and let the questionable note remain in the transparent compartment of the cash collection box.

5.  About 15 minutes later, KMB Bus Inspector LAU Sui-man (PW2) arrived at PW1's bus.  PW1 pointed out the defendant to PW2.  PW2 then called the Police.

6.  PC 5755 (PW3) later arrived at the scene.  The defendant admitted to PW3 that he used the suspected counterfeit $10 note to pay for his bus fare; however, the note was given to him as change in a previous transaction.  PW3 retrieved and seized the $10 note from the transparent compartment of the cash collection box on PW1's bus.

7.  The defendant was brought to Sheung Shui Police Station for investigation.  Since no other suspected counterfeit notes were found on him and he claimed that he had no knowledge of the counterfeit nature of the $10 note, the defendant was released without being charged.

8.  On the following day (12 December 2008), CCB officers discovered that the $10 note used by the defendant and some of the counterfeit $10 notes previously used on KMB buses bear the same serial number.  The defendant was then arrested at his school at about 5:45 pm on the same day.  Under caution, he admitted that he had used the counterfeit $10 note to pay for his bus fare on 11 December 2008. 

Charges 1 and 3

9.  In his 2 video interviews, the defendant admitted, under caution, that in July and August 2008, he made counterfeit $10 notes at home using a scanner-printer and a personal computer.  He scanned the front and back images of genuine $10 notes and printed them on regular paper.  He then used a stainless steel ruler to press and tear the printouts into the size of a genuine $10 note.  This is Charge 1.

10.  The defendant also admitted that he began using the homemade counterfeit $10 notes to pay for his bus fares since July 2008, and that between 18 July and 11 December 2008, he had used a total of 45 counterfeit $10 notes to pay for the fares of various KMB bus routes.  This is Charge 3.

Mitigation

11.  The defendant is now 18 years old and has a clear record.  He was still 16 when he committed the present offences.  The defendant practically grew up in a single-parent family.  Although there was no formal divorce until 2009, his father had moved away when the defendant was 5 years old.  The defendant and his elder sister were raised by their mother.  Financially, the father made sufficient contribution to the family.  He also purchased the flat in Tin Shui Wai for his wife and 2 children.

12.  Defence counsel Mr. LAU submitted that the defendant did not grow up happily and was not sociable.  In 2001, the defendant's mother noticed the problem and took some remedial actions.  The situation improved.  The defendant made prefect in Primary 5 and head prefect in Primary 6.  Then in secondary school, he became involved in various extra-curricular activities, especially the school band and orchestra.  His achievements in music are impressive. 

13.  In 2007, thinking that his children would be mature enough to accept the reality, the defendant's father decided to file for divorce.  Unfortunately, the defendant was unable to cope with such disturbing news.  He lost his positive attitude and became isolated again.  He stopped his activities at school and spent his time hiding in his room playing computer.  His academic performance deteriorated.  He did not do well in his O-Level examinations in 2008.  As a result, he switched to his present school to repeat F.5.  All 3 offences took place in the summer of 2008 and the early part of his repeating F.5.

14.  Despite being arrested in December 2008, the defendant achieved satisfactory results in his 2nd attempt of the O-Level examinations in spring 2009 and proceeded to F.6 at his present school.  His internal grades were good enough to rank him 2nd in his F.5 class.  His current teachers all commented that the defendant is a studious, hard-working, polite, and respectful student.  Although he was charged in June 2009, the defendant demonstrated his determination to excel himself by continuing with his study and participating in various voluntary services throughout 2009.

Sentence

15.  I note that this case lacks all the typical features of crimes involving counterfeit currency notes.  The financial loss suffered by KMB is low; the counterfeit notes are homemade and of poor quality; no sophisticated counterfeiting materials or equipment were used; no crime syndicate was involved.  All 3 charges are no doubt serious, but in my view, what the defendant did was of a frolic and daring nature rather than an organized crime which has a serious impact on the stability of Hong Kong's monetary system.

16.  All the pre-sentencing reports contain favourable remarks about the defendant.  Both Community Service Order and Detention Centre Order are recommended.  Given the facts of this case and the defendant's age, I normally would have no hesitation in imposing a Detention Centre Order, which provides him with a "short, sharp shock" regime in the early stage of his deviation from law and order.  However, I am aware that owing to the recent implementation of the new senior secondary curriculum, the last offer of A-level examinations will be in 2012.  I am told that the defendant is part of the 2nd last batch of intended A-levels examinees in Hong Kong.  If he is unable to continue with his F.6 study this year, his pathways for entering university will become highly uncertain.  On this matter, the defendant has my sympathy.

17.  Based on the reasons stated above, I see exceptional circumstances which justify a departure from the norm.  Having been incarcerated for over 2 weeks during Chinese New Year, the defendant has heard the clang of the prison gate.  I am sure he has learned a very bitter lesson.  Therefore, as an act of mercy, I am prepared to let him reform in an open setting so that he would be able to continue with his F.6 study and to take his A-level examinations in spring 2011.  I will follow the Probation Officer's recommendation to impose a Community Service Order. 

18.  Mr Ho, before I formally make the order, I need to explain to you the requirements of a community service order.  Community service order means in the next 12 months, you need to perform a certain number of hours of community service work.  This work carries no pay or remuneration of any type, but you need to perform up to the satisfaction of the probation officer or those who supervise you.  You cannot be late for work or leave work early.  If you have a valid excuse to be absent from work such as being sick, you need to inform the probation officer or those supervise you in advance.

19.  If the probation officer reports to court that your performance is not up to standard, and after consideration the court takes the view that you are in breach of any of the conditions of the community service order, the court has the power to sentence you afresh.  Do you understand?

DEFENDANT:  Yes.

COURT:  Are you willing to comply with the terms of the community  service order?

DEFENDANT:  Yes.

20.  Please sit down.  For each charge, I sentence you to 200 hours of community service, all to run concurrently.   Now, Mr Ho, you do not need to thank me.  I am just doing my job.  I stress that had it not been your awkward A-level situation, you would be going straight to a detention centre today.  I hope you would treasure this opportunity and make the most out of it.  You owe it to yourself, your parents, your teachers and all the people who care about it.  Good luck with your A-level examinations next year.

(Discussion re compensation order)

21.  I make a compensation order in the sum of $450 to KMB, amount to be deducted from the bail money.