HKSAR v. JAJBIR SINGH AND OTHERS

DCCC 23 & 156/2019 (Consolidated)

[2020] HKDC 1087

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 23 & 156 OF 2019

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  REASONS FOR SENTENCE

Procedural History

This case first came before me for plea on 18 October 2019 (for D1 to D3 only). D1 to D3 pleaded guilty to certain charges according to their respective agreements with the prosecution. D1 and D3 also indicated their willingness to give evidence for the prosecution against D4. Hence, their sentencing was adjourned until the conclusion of D4's trial.

2.  D2, owing to the sentence which she was likely to receive and with the consent of counsel for both sides, was sentenced by me on 28 October 2019.

3.  D4's trial was originally fixed for 3 February 2020 (with 4 days reserved).  Due to the outbreak of the coronavirus, court proceedings were generally suspended for a few months since 29 January 2020.  As a result, D4's trial was refixed to 5 October 2020, which lasted for 5 days.

4.  I delivered my Reasons for Verdict in D4's trial on 19 November 2020.  Mitigation on behalf of D1, D3 and D4 were made by their respective counsel on the same day.  I will sentence them now.

The Charges

5.  D1 and D3 are jointly charged with 1 offence of "Having custody or control of counterfeit currency notes" (Charge 1) and 1 offence of "Possession of an identity card relating to another person" (Charge 2).  D1 alone faces 1 charge of "Obstructing a public officer" (Charge 3).  D3 alone faces 1 charge of "Assaulting a police officer in execution of duty" (Charge 4).  D1, D3 and D4 are jointly charged with 1 offence of "Conspiracy to make counterfeit notes" (Charge 5).  D1 and D2 are jointly charged with 1 offence of "Passing or tendering a counterfeit note" (Charge 6) and 1 offence of "Conspiracy to make counterfeit notes" (Charge 7).

6.  D1 pleaded guilty to Charges 3, 5 and 7.  D3 pleaded guilty to Charges 4 and 5. D4 was convicted of Charge 5 after trial.

7.  The prosecution applied to leave Charges 1, 2 and 6 against D1; and Charges 1 and 2 against D3 in the court file; not to be proceeded against them without leave of court.  I granted the application.

8.  I should also mention that D2 has pleaded guilty to Charge 6; and Charge 7 against her was left in the court file.  She was sentenced to 12 months' imprisonment for Charge 6.

Summary of Facts

Charges 3 and 4 (against D1 and D3 respectively)

9.  About 5:30 p.m. on 12 June 2018, police officers searched Room 1, 2^nd Floor, No.277 Chatham Road North, Hung Hom ("the Cubicle") pursuant to a search warrant.  D1 and D3 were found inside.  The Cubicle was rented under the name of Alan Edward van Leuven.

10.  Since the Cubicle was small, DPC 1888 (PW14) held D1 by his arms intending to lead him to go outside the Cubicle to witness the search.  D1 was uncooperative and started yelling in foul language.  He put up a struggle and swung away PW14's hands. PW14 warned D1 to be cooperative or he would be charged with "Obstructing a police officer".  PW14 tried to lead D1 out of the Cubicle again, but D1 swung PW14's hands away and continued to yell.  As a result, PW14 and his colleagues pressed D1 on the floor and handcuffed him.  This is Charge 3.

11.  During the altercation between D1 and PW14, D3 was emotional and WDPC 9430 tried to comfort her.  D3 slapped WDPC 9430 on her face once.  WDPC 9430 was sent to the hospital and was found to have tenderness and redness on her right face.  This is Charge 4.

Charge 5 (against D1, D3 and D4)

12.  The offence took place in Room 2310 (the "1^st Room") of iclub Hotel in Ma Tau Wai ("the Hotel").

13.  About 2:30 p.m. on 5 July 2018, when cleaning the 1^st Room, staff of the Hotel found pieces of paper with images of Hong Kong banknotes printed on them lying on the floor.  A printer was also found underneath the bed.  The Police was alerted.  They seized a printer (Exhibit P1) and pieces of paper with images of a HK$1,000 note and a HK$500 note (Exhibits P4 to P6) from the 1^st Room.  A McDonald's receipt (Exhibit P7) and 3 7-Eleven receipts were also seized.

14.  Police investigation (as supported by CCTV footage) revealed that about 8:30 p.m. on 3 July 2018, D4 checked into the Hotel pursuant to his reservation.  He was assigned the 1^st Room for 1 night.  About noon on 4 July 2018, D4 extended his stay for another night.  He paid for the 2^nd night with a genuine HK$1,000 note with serial number ER843531 (Exhibit P2).  It was discovered later that 2 pieces of the paper found in the 1^st Room, namely Exhibits P4 and P5, contain exact images of Exhibit P2.

15.  CCTV footage of various locations in the Hotel showed D1, D3, D4 and 5 other unknown males (WP2 to WP6) went to the 1^st Room at what time and when he/she left.  The CCTV footage of the Ground Floor Lobby showed D4 carrying the printer to the Hotel.  After checking in, he went upstairs to the 1^st Room together with D1 and WP2.

16.  Police investigation (as supported by CCTV footage) also revealed that the printer found in the 1^st Room was purchased by D1 and one of the unknown males (WP3) from the AEON store at Whampoa less than 2 hours before D4 checked into the Hotel.  D1 paid cash for it.

17.  Fingerprints were lifted from the 1^st Room and the exhibits seized.  D3's fingerprints were found on a piece of paper with an image of a HK$1,000 note printed on it and on the dressing table.  D1's fingerprints were found on a piece of A4 paper and the cover of the printer.  D4's fingerprints were found on a piece of paper with an image of a HK$1,000 note printed on it (Exhibit P5), a McDonald's receipt (Exhibit P7) and the handle of a drawer in the 1^st Room.

18.  Based on the CCTV footage of the Hotel, D3 had remained in the 1^st Room for a total of 8 hours on 4 July 2018 and about 9 hours on 5 July 2018.  D1 had remained in the 1^st Room most of the time, except when bringing the others in and out of the room.  D4 went up to the 1^st Room soon after checking-in and left around 3:40 a.m. on 4 July.  He came back around 10:20 a.m. on the same day.  He left around 2:40 p.m. and did not return.

19.  D1 and D3 now admit that between 3 and 5 July 2018, they and D4 had conspired together and with other persons unknown to make counterfeit currency notes, namely HK$500 and HK$1,000 notes, intending that they or another shall pass or tender those notes as genuine.  After trial, I found that D4 was a party to this joint enterprise.

Charge 7 (against D1)

20.  The offence took place in Room 2101 (the "2^nd Room") of the Hotel.

21.  In the evening on 22 July 2018, staff of the Hotel notified the Police after D1 and D2 had checked into the 2^nd Room.  They were then kept under observation by the Police.

22.  About 5:55 a.m. on 23 July 2018, D1 and D2 were seen boarding a taxi outside the Hotel. After alighting from the 1^st taxi at Gascoigne Road, they boarded a 2^nd taxi and returned to the Hotel.

23.  Enquiries with the taxi drivers revealed that D2 gave the 1^st driver a suspected counterfeit HK$500 note with serial number DU 202708 to pay for their taxi fare.  She was given genuine banknotes in the sum of $470 as change.

24.  About 2:30 p.m. on the same day, D2 extended her stay at the 2^nd Room for another night and paid the rent with genuine banknotes including the genuine HK$500 note with serial number DU 202708.

25.  About 3:15 a.m. on 24 July 2018, police officers entered the 2^nd Room pursuant to a search warrant.  They found D1 and D2 inside.  The following items were seized :-

(i) D2's handbag which contained 1 genuine HK$500 note, 2 counterfeit HK$500 notes and 1 counterfeit HK$100 note;

(ii) a pair of D1's trousers with 1 counterfeit HK$500 note in the pocket;

(iii) a printer and 2 toner cartridges placed separately from the printer;

(iv) 7 pens of different ink colours including gold and red;

(v) 2 cutting boards; and

(vi) in the rubbish bin placed in the bathroom, 8 pieces of A4 paper (each printed with 2 images of a HK$100 note and 1 image of a HK$500 note), 2 pieces of A4 paper (each printed with 1 image of a HK$500 note) and 1 piece of A4 paper printed with 2 images of a HK$100 note.

26.  A Government Chemist examined the counterfeit banknotes seized and found that all images of a HK$500 note were copied from the genuine HK$500 note bearing serial number DU 202708, which was used by D2 to pay for the extension of her stay at the Hotel.  Also, 4 counterfeit HK$500 notes and 1 counterfeit HK$100 note had simulated "optical variable ink" and "security window thread" which were prepared by the seized pens with gold and red ink or pens of similar make.

27.  D1 now admits that between 22 and 24 July 2018, he and D2 had conspired together and with other persons unknown to make counterfeit currency notes, namely HK$100 and HK$500 notes, intending that they or another shall pass or tender those notes as genuine.

Mitigation

D1

28.  He is almost 29 and has 2 conviction records, which included 1 offence of "Resisting a public officer".  He was sentenced for that offence in early September 2018 together with a "simple possession" offence in the same case. In my view, those 2 offences were likely committed after June 2018.  I will treat D1 as having no previous conviction similar to Charge 3.

29.  D1's counsel Mr. Beel informed me that D1 is single but has a son (aged 2) with D3.  D1 came to Hong Kong from India in December 2012 and is a Form 8 holder.  Mr. Beel has fairly accepted that enhancement of D1's sentence owing to his immigration status is inevitable.  In mitigation, Mr. Beel described the present counterfeiting scheme as one of a small scale at an unsophisticated level with little, if not, no professionalism.

D3

30.  She is 40 and has 2 conviction records, which involved 2 drug-related offences.  D3's counsel Mr. Davies informed me that D3 is Russian and has been residing in Hong Kong since 2002.  She is currently a Form 8 holder.  When D3 was in the witness box, she admitted that she is no longer in a relationship with D1, but she had a baby boy with him.  She also admitted that she had 2 children with Alan van Leuven, the registered tenant of the Cubicle in Charges 3 and 4.

31.  In mitigation, Mr. Davies echoed Mr. Beel's submission that the present counterfeiting scheme was unsophisticated and amateurish.  He emphasized that D3 was only a minor player; she was involved just because she was D1's girlfriend at that time.  A letter from D3 was placed before me; its contents are duly noted.

D4

32.  He is 26 and has a clear record.  D4's counsel Mr. Bullett informed me that D4 holds a Mexican passport.  He is half American and half Mexican.  D4 was brought up in Mexico City and finished high school there in 2014.  He then came to Hong Kong to live with his American father.  I was also informed that during D4's remand in jail custody, he was placed in Siu Lam for about 3 months for treatment of his psychiatric conditions.  An internal memo from Siu Lam Psychiatric Centre shows that the diagnosis was psychosis, but Mr. Bullett told me that it was related to bipolar disorder.

33.  In mitigation, Mr. Bullett echoed Mr. Beel's and Mr. Davies' submissions that the present counterfeiting scheme was a small scale and unsophisticated operation.  The quantity and value of the counterfeit notes involved were both low.  He stressed that D4's role was minor and passive.

Sentence

Charges 5 and 7

34. Any counterfeiting operation which uses an over-the-counter printer to print or scan images of genuine banknotes must be unsophisticated and amateurish. Based on the evidence before me, at least 6 people (D1 to D4 and 2 WPs[1]) were involved in the making and/or tendering of counterfeit banknotes. There is no evidence showing how many banknotes were printed. Only 1 counterfeit HK$500 note was used successfully by D2[2]. Judging on the quality of the counterfeit notes, I do not think they could be used in any meaningful way, except making small purchases for the purpose of receiving genuine banknotes as change.

35. There are no sentencing tariffs or guidelines for offences related to counterfeit notes. Mr. Beel has submitted 2 cases on sentencing for my reference[3], but the criminality in them are far more serious than Charges 5 and 7 in the present case. For the present counterfeiting scheme, I consider a basic starting point of 2 years' imprisonment appropriate and just.

36. I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in another country. I understand that the verification of a non-refoulement claim is a lengthy process. I also appreciate that disappointment and frustration may result from the unknown period of waiting. Be that as it may, Form 8 holders must behave themselves and obey the law in return for the hospitality extended to them by Hong Kong.

37. I have borne in mind the principles set out by the Court of Appeal on sentencing criminals with Form 8 holder status[4]. By their nature as well as the circumstances of their commission, the present counterfeiting offences clearly have a serious detrimental effect on the community at large.

D1

38. He clearly played an active and leading role in Charges 5 and 7. I would increase the starting point to 27 months' imprisonment because of his Form 8 holder status. With the timely guilty plea, the sentence is reduced to 18 months.

39. D1 gave evidence for the prosecution in D4's trial. I disbelieved him. His evidence was contradicted by the CCTV footage. He tried to gain credit for himself by portraying D4 as the person who orchestrated the "money-printing plan" when D1 himself was in fact the one who gave orders to D4. I would not grant him any discount for assisting the prosecution because he did not. I sentence D1 to 18 months' imprisonment each for Charges 5 and 7.

40. For Charge 3, I adopt a starting point of 6 weeks' imprisonment[5]. With the timely guilty plea, the sentence is reduced to 4 weeks. I sentence D1 to 4 weeks' imprisonment for this charge.

41. I accept that Charge 7 may well be a continuation of Charge 5, but D1 could have stopped after Charge 5. Yet, after exploiting D4 in Charge 5, he exploited D2 in Charges 6 and 7. Bearing in mind his role and immigration status, I consider a global starting point of 3 years' imprisonment appropriate for Charges 5 and 7. With the timely guilty pleas, the overall sentence is reduced to 2 years. To achieve this, I order 6 months in Charge 7 to run consecutive to Charge 5.

42. Charge 3 is separate and distinct from the other 2 charges. Having considered the totality principle, I order the sentence for Charge 3 to run consecutive to Charges 5 and 7. In other words, the total prison term for all 3 charges is 2 years and 4 weeks.

D3

43. Her role in Charge 5 was less active and less important than D1, which justifies a starting point of 18 months' imprisonment. I would increase the starting point to 21 months because of her Form 8 holder status. With the timely guilty plea, the sentence is reduced to 14 months.

44. D3 gave evidence for the prosecution in D4's trial. I disbelieved her as well. Her evidence was also contradicted by the CCTV footage. She tried to gain credit for herself by exaggerating D4's participation in Charge 5. I would not grant her any discount for assisting the prosecution because she did not. I sentence D3 to 14 months' imprisonment for Charge 5.

45. For Charge 4, I adopt a starting point of 9 weeks' imprisonment[6]. With the timely guilty plea, the sentence is reduced to 6 weeks. I sentence D3 to 6 weeks' imprisonment for this charge.

46. Charge 4 is separate and distinct from Charge 5. Having considered the totality principle, I order the sentence for Charge 4 to run consecutive to Charge 5. In other words, the total prison term for both charges is 14 months and 6 weeks.

D4

47. I agree with Mr. Bullett that D4's role in Charge 5 was minor and passive, which justifies a starting point of 18 months' imprisonment. Since he is convicted after trial, no guilty plea discount can be given. I accept that D1 might have taken advantage of D4 by luring him into renting a hotel room for D1. Based on this factor and D4's clear record, I exercise my discretion to grant him a discount of 2 months. I sentence D4 to 16 months' imprisonment for Charge 5.