HKSAR v. LEGASPI STEPHANIE JOY

DCCC 787/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 787 OF 2016

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REASONS FOR SENTENCE

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Charges

1.  The defendant is charged with three offences, namely, Charge 1, having custody or control of counterfeiting materials and implements, contrary to section 101(1) of the Crimes Ordinance, Cap 200; Charge 2, possession of a dangerous drug, namely, 0.60 gramme of a crystalline solid containing methamphetamine hydrochloride, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and Charge 3, possession of apparatus fit and intended for the inhalation of a dangerous drug, namely, one inhaling device, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134. 

2.  All the offences took place on 18 February 2016 at the residence of the defendant in Whampoa Building, Hunghom. 

3.  The defendant pleaded guilty to Charges 2 and 3 but not guilty to Charge 1.  She was convicted after trial of Charge 1. 

4.  The facts in relation to Charges 2 and 3 to which she admitted are as follows. 

5.  Police officers entered the flat described in the three charges on 18 February 2016 at about 10.29 am.  The defendant was found to be asleep in one of the two bedrooms while her boyfriend was using the Internet. 

6.  Upon a search of the flat, a metal box containing a transparent resealable plastic bag which then contained a crystalline solid suspected to be the dangerous drug “Ice” together with an “Ice” bottle and other drug paraphernalia for consuming dangerous drugs were found.  The suspected “Ice” was later found by the government chemist to be 0.60 gramme of a crystalline solid containing methamphetamine hydrochloride. 

7.  At the scene, upon being arrested and cautioned, the defendant said in Cantonese that the dangerous drugs were all hers and had nothing to do with her boyfriend.

8.  At the police headquarters, with the assistance of a Chinese-English interpreter, the defendant signed a post-recorded statement under caution in which she initially acknowledged that these drugs and paraphernalia were all hers.

9.  In a subsequent video-recorded interview under caution, the defendant went on to admit that the drugs and the equipment belonged to both herself and her boyfriend.  She said she, through a friend named Andy, had arranged to meet some unknown male in a park in Whampoa Garden about a week ago, and she alone purchased 1.75 gramme of “Ice” from an Indian male for $300.  She usually smoked less than 0.05 gramme of “Ice” per day.  She said she and her boyfriend had already smoked some of the “Ice” before the police raid.  When shown the paraphernalia, she identified the “Ice” bottle, the drinking straws, the lighter, glass pipe and tinfoil were all used for consuming “Ice” and belonging to them both.

10.  In respect of the 1st charge, the facts which I found after trial were as follows.  As previously described, the police conducted a house search.  Apart from the “Ice” and the “Ice” bottle found, the following items, including five printers, one MacBook containing 15 complete images of Hong Kong dollar banknotes, one iPad containing two complete images of Hong Kong banknotes, 84 sheets of A4-size paper, inks, two ultraviolet lights, one magnifying glass, one paper trimmer, one briefcase and two albums containing, inter alia, pieces of coloured ink impressions/prints/drawings of semi-finished $500 banknotes, one set of ink impressions/prints/drawing/tracing of parts of $500 HSBC banknotes, ink impressions/prints/drawings of lion heads being parts of banknotes were found in her bedroom.

11.  The defendant’s fingerprints were found on:-

(i) a piece of adhesive tape attached to a piece of tracing;

(ii) a piece of red sticker attached to a piece of tracing; and

(iii) a piece of paper attached to a piece of paper with grid pattern.

Partial features of Hong Kong banknotes were found on the said pieces of tracing and on the grid-pattern paper which were placed inside the said briefcase.

12.  Police took a written record of interview with the defendant in the police station.  Under caution, she admitted that those counterfeit banknotes, the equipment for making counterfeit banknotes were hers.  It had nothing to do with her boyfriend.

13.  In a subsequent video-recorded interview, she admitted, inter alia, that she had used/acquired/kept the items named in the particulars of the amended Charge 1; she had downloaded a $500 banknote image from Google to her iPad and copied or traced the lion head with a piece of paper putting on top of the iPad.  She claimed that she did so in order to help her boyfriend do some artwork.  They had printed out the banknotes using the Epson printer because they wanted to test the printer.  Again she claimed she and her boyfriend were simply making design of the banknotes and they had no intention to even make them as finished products.  They both liked drawing.

14.  I find that the defendant has in her custody or control the items particularised in the amended Charge 1 which she intended to use or permit any other person to use for the purpose of making counterfeit currency note with the intention that it be passed or tendered as genuine (the detailed reasons as those set out in the reasons for verdict).

Criminal convictions

15.  Prior to committing the present offences, the defendant was of clear record.

Antecedent

16.  The antecedent statement shows that the defendant, aged 24, is single. She will be 25 in December this year.  She received education in Hong Kong up to Form 5.  She was employed as a model agent.  She claimed she was a drug addict.

Mitigation

Hearing on 12 July 2017

17.  In mitigation, Mr Polson said that the defendant was a regular consumer of “Ice” at the time of arrest and the defendant admitted the same when she was interviewed by the police.  Mr Polson considered that a background report would be beneficial before a sentence was to be imposed on the defendant.  Upon request, Mr Polson did not submit any sentencing authorities for the court’s consideration.

18.  On the other hand, Mr Percy drew the court’s attention to the following authorities: HKSAR v Ng Chi Yuen DCCC 86 of 2015, HKSAR v Cheung Yuk Lung DCCC 602 of 2013, HKSAR v Mok Cho Tik CACC 165 of 2000, HKSAR v Hui Ka Wai DCCC 980 of 2016 and HKSAR v Chang Tsan Ho DCCC 77 of 2010.

19.  I considered that a background report would be useful.  So I adjourned the sentence to 1 August 2017 for such a report.  Also, I requested for a urine test to be conducted on the defendant.  Besides, I told counsel that I had considered the following sentencing authorities: HKSAR v Wong Hoi Yat [2006] 3 HKLRD 151, HKSAR v Li Tsz Chung CACC 312 and 314 of 2011, HKSAR v Chan Ka Kin CACC 474 of 2004, and HKSAR v Au Wai Yip CACC 166 of 2002 and invited Mr Polson to address me on the aforesaid authorities if necessary on the next occasion.

Hearing on 1 August 2017

20.  The sentence hearing took place on 1 August 2017.  Prior to that, Mr Polson had filed to the court defence skeleton submission in mitigation.  Today, Mr Polson submitted that the court should take into account the factors listed out in paragraph 1 of his written submission for sentence.  

21.  He said that the defendant’s scale of operation was small and was far from sophisticated.  The defendant used ordinary second-hand printers and computers which could be found in every household in Hong Kong.  In terms of the length of time the offence had been committed, Mr Polson said that it was hard to judge but it had gone on for some time.  He emphasised that there was no counterfeit banknote produced and the defendant was not the prime mover of this event.  He urged the court to impose a suspended sentence as there were exceptional circumstances.  For example, the defendant is described as a kind and caring person; she had done a lot for her family; she had not had trouble with the police before the present offences; she would not reoffend; and she had quit taking dangerous drugs.  

22.  I note from the contents of the background report that the defendant was described by her father and her boyfriend as kind-hearted and caring.  She has a close relationship with her parents.

23.  The defendant quitted school when she was in Form 5.  She then became a part-time waitress from 2010 to 2011 and worked as a model agent in 2012, earning 12,000 a month.  In the same year, she quitted the job as she had to look after her mother who suffered a serious stroke.  Unfortunately, her mother passed away in 2014.  The defendant then suffered from a depressed mood and adopted a loose life pattern.  She started taking “Ice” once a week.  At her peak, she used “Ice” daily.  After arrest for the present offences in February 2016, she realised the seriousness and the negative impact of her drug problem and she ceased taking any illicit drugs.  She showed remorse for using dangerous drugs.

24.  In respect of the offence of having in her custody or control of counterfeiting materials and implements, she told the probation officer that she did not know the password of her boyfriend’s notebook computer in which images of currency were kept or stored.  She said that she sometimes used the images for designing tattoos for her boyfriend but not to make counterfeit money.

25.  The urine tests show negative results for a number of different dangerous drugs.

Reasons for Sentence

26.  I take into account everything said and written by Mr Polson on behalf of the defendant.

27.  The abovementioned authorities were considered.  It is noted that some of the authorities relate to the offence of having custody or control of counterfeit notes or counterfeiting notes with intent or passing counterfeit notes whilst the present offence involves the custody or control of counterfeiting materials and implements.  It is also noted that all these offences are extremely serious as the maximum penalty on conviction on indictment for each offence is imprisonment for 14 years.

28.  The Court of Appeal has not laid down any tariff for offences involving counterfeit notes.  In Wong Hoi Yat, the Court of Appeal said the overriding principle was that making counterfeit notes was an extremely serious offence that clearly called for a heavy and deterrent sentence.

29.  In determining the appropriate sentence, I do not lose sight of the following factors for consideration, namely, the quantity, value and the degree of sophistication of any of counterfeit copies; the scale of the operation; the nature and efficacy of the paraphernalia; and the length of time over which the offence had been committed; the role played by the defendant and the background of the defendant (see HKSAR v Wong Hoi Yat).

Charge 1

30.  In respect of Charge 1, I have examined the exhibits in court and looked at the photo albums, which are Exhibits P79 and 80 and also P74, which clearly depict the images of banknotes and the ink impressions or prints or drawings of semi‑finished products -- of finished banknotes found inside the black suitcase. 

31.  Of relevance in the present case was the instruments and materials used for the purpose of making counterfeit banknotes.  The number of items of the instruments and materials was not small.  There were five printers (inkjet printers) and the defendant admitted in the video-recorded interview that the Epson printer was used for printing counterfeit banknotes.  There were a MacBook and an iPad seized and in both of which images of banknotes were found.  Two ultraviolet lights and the magnifying glass were found which were definitely used to examine the details of the counterfeit banknotes.  The paper trimmer was for cutting the counterfeit banknotes to the appropriate size, and the ink for adding colour to the banknotes, etc.  In the said suitcase, police found a red album and a blue folder which contained many different sizes of papers with partial features of Hong Kong banknotes drawn.  Those partial features or patterns or enlarged images of Hong Kong banknotes with fine details were skilfully drawn.

32.  Although no counterfeit banknote in physical form was found, images of banknotes in the value of $20, $50, $100 and $500 were found in the iPad and the MacBook and they could simply be printed out.  In other words, the defendant had the capacity to make counterfeit banknotes and the capacity to make more.  The expert said that:-

“If the banknote image in the computer was a complete image and the colour of the banknote image was likely to be genuine banknote, it could be used to make counterfeit notes by direct digital printing, that is, inkjet or laser printing.”

In doing so, the defendant would attack the integrity of the currency circulated in the society (see HKSAR v Li Tsz Chung).

33.  Having examined the exhibits, I find that the level of sophistication of the counterfeit involved was not low.  There are five printers involved.  The drawings of the banknotes which were found in the said suitcase were done skilfully.  One can see the layering of the banknotes, the detailed outline of the banknotes, the minute details of the pattern drawn, and if they are produced and printed out, they would resemble to genuine banknotes.

34.  Regarding the role of the defendant, Mr Polson submitted that it was apparent that her boyfriend was the “brains” behind the operation and played the major dominant role, and the defendant was convicted because of her proximity to the operation and her presumed knowledge and intent.  Pausing here, I should state that the defendant was not convicted on the sole basis suggested by Mr Polson, the details of my findings as those set out in the reasons for verdict.

35.  I find that the defendant’s role in this incident was not minor.  She admitted that she downloaded a $500 banknote onto her iPad and used iDraw to trace the lion head and that the Epson printer had been used to print out banknotes.  She said she created and designed banknotes but denied using them. I reject her claim totally.  Her fingerprints were found on a few pieces of sticker, adhesive tapes and papers on which partial features of Hong Kong banknotes were drawn.  Besides, she admitted in the record of interview that those counterfeit banknotes, the equipment for making counterfeit banknotes and dangerous drugs were hers.

36.  Having considered all the circumstances of the case, I adopt a starting point of three and a half years’ imprisonment for Charge 1.  The defendant was convicted after trial so she is not entitled to have a one-third discount for sentence.  There exists no other mitigating factor.  I sentence her to three and a half years’ imprisonment.

37.  Mr Polson asked the court to impose a suspended sentence.  In considering whether or not to impose a suspended sentence, I have considered all the circumstances of the commission of the offence and that of the defendant.  I also take into account SJ v Wade, Ian Francis CAAR 1 of 2015 and the paragraph to which Mr Polson referred (see Hong Kong Archbold 2017, 5-110).  I come to conclude that it is inappropriate and in fact wrong in principle to impose a suspended sentence on the defendant.  As previously said, it is an extremely serious offence that clearly calls for a heavy and deterrent sentence (see HKSAR v Wong Hoi Yat). 

Charge 2

38.  The offence of possession of a dangerous drug involves a small quantity of “Ice”, namely, 0.60 gramme.  I adopt a starting point of 6 months’ imprisonment for sentence (see HKSAR v Babar, Imran HKMA 556 of 2015).  Given the small quantity, I find that there is no latent risk involved.  Upon her plea of guilty, she is entitled to a one-third discount of sentence.  She is sentenced to 4 months’ imprisonment.

Charge 3

39.  The offence of possession of apparatus fit and intended for the inhalation of a dangerous drug involves one inhaling device which was kept at home as opposed to having it displayed in a public place to which members of public have access.  I also adopt a starting point of 6 months’ imprisonment.  Giving her the one-third discount of sentence for her plea of guilty, she is sentenced to 4 months’ imprisonment (see R v Law Sing HCMA 890 of 1996).

Totality

40.  Having considered the totality principle, I order that the sentences of Charges 2 and 3 should run concurrently with each other, thus making a total of 4 months’ imprisonment.

41.  The offence of having custody or control of counterfeit materials and implements is, however, a separate and distinct offence from the other two drug-related offences.  Having said so, I bear in mind the totality principle and order that 2 months of the sentences of Charges 2 and 3 should run concurrently with the offence of Charge 1.

42.  The defendant is therefore sentenced to a total of 44 months’ imprisonment for all the charges.