HKSAR v. SUMIYA BOLORTUUL

DCCC 691/2021

[2021] HKDC 1518

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 691 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to having custody or control of counterfeit currency notes, contrary to section 100(1)  of the Crimes Ordinance, Cap 200 (Charge 1)  and failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221 (Charge 2).

2.  The particulars of Charge 1 are that on 5 June 2020, in Room 1204, Flat A and B, 12th Floor, Harilela Mansion, 81 Nathan Road, Tsim Sha Tsui, Kowloon, the defendant had in her custody or under her control 8 pieces of HK$1,000 notes and 8 pieces of HK$500 notes, which were, and which she knew or believed to be counterfeit notes, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another would pass or tender them as genuine. 

3.  After her arrest, she was taken to Kowloon City Magistracy on 8 June 2020 and granted court bail.  On 19 August 2020, she was meant to attend court but due to adverse weather signals, her court hearing was adjourned to the following day, 20 August 2020.  She did not appear as required nor appear at subsequent hearings.  She was rearrested in May 2021, some 8 months later, and has since been remanded in custody.  These are the particulars of Charge 2.  She was admitted to bail but without reasonable cause failed to surrender to custody as appointed. 

4.  The facts of this case stem from a stop and search at around 1 pm on 5 June 2020.  Police officers intercepted the defendant and upon enquiry, she told them she was a Form 8 holder in Hong Kong but had left her identity document at home.  She willingly led officers to her home nearby which is a guesthouse where she lived with her boyfriend.

5.  She arrived at 2 pm with the police officers and in the room rented, the officers found her boyfriend and another man present.  They also found an open wallet on a cabinet inside the room. Upon a search of that wallet, the police found a total of 16 counterfeit Hong Kong dollar notes totalling $12,000.  

6.  No one in the room answered the police when they asked who owned the notes, the police then arrested the defendant for possession of counterfeit notes and under caution, she said that the wallet belonged to her.

7.  She admits she had in her custody or under her control, those counterfeit notes which she knew or believed to be counterfeit. She intended to either pass or tender them as genuine or deliver them to another with the intention that he or another would pass or tender them as genuine. 

Mitigation

8.  The defendant is from Mongolia and 40 years old.  Before she came to Hong Kong in 2010 as a tourist, she was living in Mongolia but recently divorced.  From that marriage, she has 3 children who are presently living with their grandparents in Mongolia.

9.  After she came to Hong Kong as a tourist, she applied for asylum and refugee status.  She has been here since then. Not long after her arrival here, she met a man and fell pregnant.  She had a daughter who is now aged 9, however that man is no longer in their lives.  She met her current boyfriend, a Hong Kong resident and had another daughter who is now aged 5.  I am told at the time of her arrest, she was living with him and both children. 

10.  She had been in and out of prison since her arrival in Hong Kong.  She has eight previous convictions since December 2011 and was last convicted on 29 April 2020 for possession of dangerous drugs and sentenced to 2 months’ imprisonment suspended for 18 months.  She is now in breach of that suspended sentence.

11.  Her previous convictions range from possession of an offensive weapon, possession of dangerous drugs to shoplifting and burglary. She has now, on a total of three occasions, failed to either answer police bail or court bail.  

12.  Ms Mohamed has said all she can say in mitigation on behalf of the defendant.  She has emphasised that the defendant has stopped taking drugs for the sake of her children and is remorseful.  She is the children’s main carer and hoping to resume that role as soon as possible.  Her best mitigation is in fact her plea today. 

Reason for Sentence

13.  Offences relating to counterfeit notes do not have any guidelines in sentencing but these offences are serious in that they affect the financial system and reputation of Hong Kong.  They merit a deterrent sentence in the form of a term of imprisonment. 

14.  I have taken into account the facts, the number of counterfeit notes and mitigation put forward.  I find a starting point of 2 years and 6 months’ imprisonment appropriate for Charge 1.  For Charge 2, I take into account the time the defendant absconded, about 8 months and take a starting point of 6 months’ imprisonment. 

15.  There is an additional aggravating factor and Ms Mohamed has nothing to add in mitigation to this.  The defendant is a Form 8 holder in Hong Kong and committed these offences whilst awaiting the outcome of her status claim.  However, on this occasion and on a number of other occasions, she has abused the hospitality and liberty offered by the Hong Kong Government by committing offences.  It has been said by the Court of Appeal that this factor is an aggravating factor and sentence should be enhanced for this. 

16.  Enhancements have ranged from a few months to up to 1 year.  However, there are no guidelines for enhancement.  Obviously, the more serious the offence on the community and Hong Kong’s reputation, the greater the enhancement.  I enhance the starting point of 2 years and 6 months for Charge 1 by 3 months to 2 years and 9 months’ imprisonment. 

17.  The defendant indicated her plea at the earliest opportunity and is entitled to a one-third discount in sentence.  There are no other mitigating factors of sufficient weight to justify any further reduction.  After that discount is applied, the starting point of 2 years and 9 months, the defendant is accordingly sentenced to 1 year and 10 months’ imprisonment for Charge 1.

18.  After that discount is applied to the starting point of 6 months for Charge 2, the defendant is accordingly sentenced to 4 months’ imprisonment. 

19.  I order 2 months of this sentence to run consecutively to Charge 1 and the balance concurrently.  Therefore, the defendant is sentenced to a total of 2 years’ imprisonment for Charges 1 and 2. 

20.  The defendant is in breach of a suspended sentence imposed in the magistracy case KCCC 351/2020 for possession of dangerous drugs.  That sentence was imposed on 29 April 2020.  I see no reason not to activate that suspended sentence.  I order the 2 months of that suspended sentence to be activated and served consecutively to the sentence imposed today.  Therefore, the defendant will serve a total of 2 years and 2 months’ imprisonment.