HKSAR v. HUANG YIHAO AND ANOTHER

DCCC236/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 236 OF 2009

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Reasons for Sentence

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1.  Both D1 and D2 pleaded guilty to the 1st charge, the 3rd charge is now left on court’s file and is not to be proceeded with without the leave of the court.

2.  The prosecution case against D1 and D2 in respect of the 1st charge is that D1 and D2 came to Hong Kong on 31^st December 2008. On 4 January 2009, at about 6.30pm, PW2 and 3 spotted D1 and D2 at Carnarvon Road at the junction of Humphreys Avenue. D1 and 2 were acting suspiciously and they put them under observation. Subsequently, PW2 and 3 intercepted D1 and 2 respectively.

3.   During enquiry, PW2 found from D1 the following items:

(a) a suspected counterfeit CNY100 banknote, (Exhibit 8), from the right front jacket pocket; and

(b) a white envelope containing 12 suspected counterfeit CNY100 banknotes, (Exhibit 9); and

(c) a wallet containing 11 genuine CNY100 banknotes from his rear trousers pocket.

4.   PW3 found one suspected counterfeit CNY100 dollar note (Exhibit 10 ) from the wallet of D2.

5.  On the same day PW2 arrested and cautioned D1. PW3 arrested and cautioned D2. While exhibits 8,9 and 10 were proved to be counterfeit notes by PW5.

6.  As to D1, under caution, he said he exchanged the counterfeit notes from China. In the record of interview, he also said that on 27 December 2008 he exchanged $10,000 into CNY8,000 in China. This money belonged to both D1 and 2. They came to Hong Kong on 31 December 2008. D1 brought along the CNY8,000 with him. When in Hong Kong the money exchanger told D1 that two of D1’s ten CNY100 banknotes were counterfeits. Back to the hotel, D1 examined his CNY$8,000 and found that 13 to 14 one hundred banknotes were counterfeits. He used a white envelope to contain the 13 to 14 counterfeit notes. D1 tried to use these counterfeit notes for payment but was refused.

7.  As to D2, under caution, he also said that the money was exchanged in China and “he intended to make a gain towards his travelling expenses in Hong Kong”.

8.  In his record of interview he said this: D1 and 2 had won some money in gambling in Macau and they exchanged the $10,000 into CNY8, 000. On 31 December 2008 they came to Hong Kong. In the hostel, D1 found out 13 to 14 of the CNY100 banknotes were counterfeits. D1 used an envelope to keep this counterfeit money. One counterfeit CNY100 banknotes D2 had in his custody were given by D1. D2 put the counterfeit banknotes into his wallet.

9.  In mitigation, I am told that both defendants have a clear record; they both come from China, their families all live in China. As to D1, he is 49 years old. He came to Hong Kong for the purpose of visiting his elder brother. As to D2, he is 35. His wife works in Macau and they both support the family.

10.  From the Summary of Facts and from D2’s mitigation, the whole matter apparently arose out of the visit to Macau for gambling when the two of them won some money. They both write to this court to express their remorse and they wish to return home soon to look after their sick elderly parents and families.

11.  I also have been referred to two cases, one is Leung Wai Han CACC 102/2002 and Suen Kwok Nam Criminal Appeal NO 84 of 2004. For obviously reason, I will not consider Suen’s case because the defendants in the present case are well above the age limit to be sentenced to training centre. But suffice to say; the court considered this was a serious offence. The maximum sentence is 14 years.

12.  In Leung Wai Hang’s case, the appellant was in custody of altogether $3,320 counterfeit notes in two separate dates, in the 1st charge was 11 counterfeit notes of $100 and one $20 counterfeit notes. Two days later she was also found in her custody of 22 pieces of 100 counterfeit notes. She also faced other charges of drugs offence and possession of identity cards related to another person.

13.  For the purpose of the present case, I only need to refer to the counterfeit notes charges in Leung Wai Han; the court took a starting point of 2½ years, which had been upheld in appeal. The overall criminality of Leung Wai Hang’s case was more serious than the present case.

14.  The facts of the case before me were that they found out the counterfeit notes in Hong Kong and not that they were aware of the existence of the counterfeit notes in China and brought it with them to Hong Kong for using. If that were the case, it would be an aggravating feature. That being the case, they still have all the intention to use the counterfeit notes in Hong Kong.

15.  As said in Leung Wai Hang’s case, there was no guideline in sentencing this kind of case.

16.  In passing sentence, I bear in mind that both defendants have clear record, and they pleaded guilty to the charge, with all the mitigating factors put before me, I adopt a starting point of 2 years and reduce it to 16 months to reflect their guilty pleas.