HKSAR v. HO CHUN FAI

DCCC 840/2020

[2021] HKDC 335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 840 OF 2020

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to two charges of passing or tendering counterfeit currency note, contrary to section 99(1)(a) of the Crimes Ordinance, Cap 200. The Defendant passed or tendered as genuine one piece of HK$500 counterfeit banknote to a shop on the same floor of the shopping arcade in each of the charges while making purchases of goods with low value. For the two occasions, the Defendant was given HK$440 and $480 change respectively. The two offences were committed about 10 minutes apart. The Defendant was arrested six days after the offences.

2.  The Defendant is 22 years old and has attained Form 1 education.  He is unemployed and lived with his parents, younger sister and a 2-year-old daughter.  He has three previous convictions consisting of five charges with no similar convictions.

3.  I am given to understand that the two counterfeit banknotes were of poor quality, despite being presented as HK$500 banknotes.  There was no watermark and a HK$20 lion pattern was on the right top corner. 

4.  The Defendant had taken an active role in both charges.  In the 1st charge, it was the Defendant’s female companion who wanted to purchase the pieces of underwear concerned and the Defendant paid for them with a counterfeit banknote.  The Defendant also received the change from the shop.

5.  In the 2nd charge, both of them wanted to purchase two mobile phone screen protectors and the Defendant asked the salesperson, who was applying the screen protectors for them, to hurry up.  When the salesperson suspected the banknote tendered by the Defendant to be counterfeit, the Defendant said that he received it somewhere else and that maybe it was washed by water. 

6.  In HKSAR v Leung Wai Han (CACC102/2002), the appellant was convicted after pleas of guilty of four charges, charges 1 and 2 being custody or control of counterfeit banknotes with the intent to pass or tender them as genuine, the 3rd charge of possession of an identity card relating to another person and the 4th charge of possession of a dangerous drug.  The 1st charge concerns 11 HK$100 banknotes and a HK$20 banknote.  The 2nd charge concerns 22 HK$100 banknotes.  The District Judge adopted a starting point of 2½ years’ imprisonment each for charges 1 and 2, reduced it by 40% to reflect the appellant’s guilty plea and assistance to the police and she was sentenced to 18 months for each of the two charges with 6 months of the 2nd charge to run consecutively to the sentence of the 1st charge.  The sentence was not disturbed on appeal.

7.  In HKSAR v Li Tsz Chung (CACC312/2011 & CACC314/2011), the applicant pleaded guilty to two charges of fraud and two charges of using a false instrument in DCCC611/2011, and one charge of making counterfeit currency notes intending that it be passed or tendered as genuine in DCCC620/2011.  The counterfeit charge concerns two HK$500 banknotes, which the defendant used to pay for meals ordered on two separate dates and from two separate shops, and received change.  The applicant was sentenced to 22 months’ imprisonment for DCCC620/2011, adopting a 2½ years’ imprisonment starting point, enhanced by 3 months’ imprisonment to 2 years and 9 months’ imprisonment, and discounted by one-third for the plea of guilty.

8.  I have been urged by Defence counsel to order wholly consecutive sentences for the two charges. 

9.  It has been stated in Leung Wai Han that even though the time between the two counterfeit offences was short, in that case two days, the two charges were separate and distinct offences, occurring at different times and places.  Apart from the question of totality, consecutive sentences should be considered and imposed in those circumstances.  Where there is more than one offence of a similar nature committed at different times, it is right for the Court to impose a higher sentence than if there had only been one offence.

10.  In the circumstances, even though the two charges in the present case were committed about 10 minutes apart, they were committed at different times and places.  I do not consider it right to order consecutive sentences save as to totality. 

11.  It must also be stressed that by committing both offences within a short period of time and on the same floor of the shopping arcade, the Defendant’s actions show a degree of planning and boldness which demonstrate a complete disregard for the law.  As such, a deterrent sentence is necessary.

12.  I have considered the guilty pleas; the Defendant’s criminal record; all mitigation advanced on his behalf; the face value and quality of the counterfeit notes; the Defendant’s role; the degree of planning and sophistication, and the compensation made by the Defendant. 

13.  I will therefore adopt a starting point of 18 months’ imprisonment for charge 1, reducing it by one-third for the Defendant’s guilty plea.  The Defendant is sentenced to 12 months’ imprisonment.

14.  For charge 2, as the Defendant committed the offence after the offence in charge 1, this increases the seriousness of charge 2.  I adopt a starting point of 21 months’ imprisonment, reduce it by one-third due to the guilty plea and sentence the Defendant to 14 months’ imprisonment for charge 2.

15.  I have considered the principle of totality, and I shall order that 6 months of charge 2 shall be served concurrently with the sentence of charge 1. The Defendant is sentenced to a total of 20 months’ imprisonment.