HKSAR v. MOHAMMED KHAN SHAMIM

DCCC 415/2023

[2024] HKDC 686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 415 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to two charges. The 1^st charge is having custody or control of counterfeit currency notes, contrary to Section 100(1)  of the Crimes Ordinance, Cap 200. The 2^nd charge is having custody or control of counterfeiting material and implement, contrary to Section 101(1)  of the Crimes Ordinance, both offences being committed on 25 May 2019 at a location in Yau Ma Tei, Kowloon.

2.  The defendant has agreed all the facts of the case. We can see the case is almost five years old now. At all material times the defendant has agreed he was a Form 8 holder and at about 1125 hours on 25 May, officers entered a room, Room 301 in a hostel in Nanking Street in Kowloon. The defendant was in the living room and it was upon a search of the location that the items that are the subject of the charge were found and they were contained in a number of bags.

3.  The first bag which called Bag A was a recycled bag and had what were described as a total of 271 plus 16 pieces of A4 or trimmed A4 paper with the images of HK$500 banknotes on them. Another bag contained a further 110 purported Bank of China $500 banknotes, 123 purported HSBC $500 banknotes and a further 108 purported Bank of China $500 banknotes. They found a recycled bag containing a paper cutting board and another recycled bag. So in total within the 1^st charge we can see there was 628 pieces of $500 Hong Kong currency notes which we know to be counterfeit currency notes and which the defendant agrees he knew or believed to be counterfeit currency notes.

4.  The defendant also had the paper trimmer under his control and he agrees that was intended to be used or permit another person to use for the purpose of making counterfeit currency on the basis that that currency would be tendered at a later date.

5.  Now the examination of the purported banknotes revealed that all the banknotes were printed by laser printing, they were devoid of security features. They are on perusal of poor quality. The defendant has, as I say, has agreed all these facts.

6.  As far as his personal background, he is a Form 8 holder from India. He has been in Hong Kong since 2007. He is now aged 48. He has a wife and three children, daughters and a son, they are all adults. The defendant was unemployed as he was a Form 8 holder. He has a number of convictions in Hong Kong, five appearances in court in total, largely for possession of dangerous drugs but also theft. He has been sentenced to imprisonment in the past. However, none of the convictions are relevant to aggravating the sentence today.

7.  In the course of mitigation, the history of the case and the history of the defendant’s detention has been aired. The defendant has been subject to a number of administrative detentions and it is common ground between the parties today that at least some part of the defendant’s administrative detention is relevant to his sentencing today and can be used under the court’s discretion to reduce the sentence of the court today.

8.  As far as that sentence is concerned, the defendant has indicated his pleas of guilty from an early stage so he will be entitled from the starting point of sentence to a full one third discount.

9.  The charges themselves are now somewhat stale, as I indicated they are some almost five years old. The defendant, I believe, was unfortunate to be arrested when he was arrested immediately prior to the Covid epidemic in Hong Kong and this has clearly drawn out the processing of his case. There is delay which is also relevant to the reduction of sentence. It is not necessary for the court to find anyone at fault for that and it would appear that circumstances have largely conspired against the defendant in this respect but it is a factor that I will consider in the sentencing.

10.  Now as far as the charges the defendant faces, they are serious charges. Both of them on indictment carry a maximum sentence of 14 years’ imprisonment, it is a serious offence. There is no sentencing guideline, however, as the circumstances in which this offence can be committed must vary considerably but the court will bear in mind in evaluating a starting point for sentence the face value of the banknotes, the degree of sophistication in the production of the banknote and whether the banknotes have actually been used. Relevant to the 2^nd charge will be, again, the degree of sophistication of the item that we are dealing with in terms of that charge. I note that the 1^st charge involves a large number of purported $500 counterfeit notes of low quality. The 2^nd charge simply involves a paper trimmer.

11.  In addition to the starting point for sentence that must be determined on both those charges, there is one aggravating factor as far as the defendant is concerned and that is he had been a Form 8 holder and for some time that has been considered by the appellate courts in Hong Kong to be an aggravating factor in sentencing and will increase the starting point for sentence prior to the deduction for a one-third discount.

12.  The other feature of sentencing that I have already elucidated to a certain extent is the deduction for the defendant’s administrative detention. It is common ground that that will operate between the dates of 9 September 2021 to 27 March 2023, that detention being attributable to the present charge and the court in its discretion will consider that this period of 18 months and 18 days can be deducted from any sentence of imprisonment that is imposed by the court. I do not propose to go into the details of that as it is at this point a common feature in the sentencing process.

13.  Turning to the starting points I will adopt for the two charges. The 1^st charge is the most serious involving a large number of counterfeit currency. As I said, sentences range widely for this but I have determined that a starting point on the 1^st charge of 3 years and 6 months’ imprisonment would be appropriate, that is 42 months. That is subject to aggravation as to the defendant’s Form 8 status, that will be a 6 month increase to 48 months’ imprisonment.

14.  There is, as I have said, delay in this case and that will operate to reduce that starting point for sentence. I have determined that that would reduce the figure to 45 months’ imprisonment, a deduction of 3 months for that.

15.  On this 1^st charge, the defendant is now entitled to a full one-third discount to 30 months’ imprisonment. I have already said that I have a discretionary power to deduct the administrative detention from that period. This is when it is just and fair to do so and the time spent in administrative detention can be attributable to the instant charge. I will therefore deduct that period of 18 months and 18 days. By my calculation, that leads to a final sentence on the 1^st charge of 11 months and 12 days.

16.  On the 2^nd charge, a similar operation must take place. I have determined a starting point of 27 months’ imprisonment on that charge, increased to 33 months’ imprisonment for the defendant’s Form 8 status, then reduced to 30 months’ imprisonment having regard to the delay. The defendant then is entitled to a one-third discount, down to 20 months’ imprisonment and then the deduction of the period in administrative detention which should lead to a sentence of one month and 12 days’ imprisonment.

17.  The charges arise out of the same incident and must be served or should be served concurrently leading to a final sentence today of 11 months and 12 days’ imprisonment. That is the sentence of the court.