HKSAR v. KHAN BILAL

DCCC 665/2019

[2020] HKDC 855

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 665 OF 2019

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

CHARGES

1.  The defendant is convicted upon his pleas and admissions of the facts of three charges, namely:-

(a)  Charge 1, trafficking of a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 234;

(b)  Charge 3, possession of false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap 200; and

(c)  Charge 5, having custody or control of counterfeit notes, contrary to section 100(1) of the Crimes Ordinance, Cap 200;

2.  By consent, Charge 2 and 4 are ordered to lie on the file and not to be proceeded with without the leave of the court.

THE FACTS

Charge 1 – Trafficking in dangerous drug

3.  On 14 March 2018 in the afternoon, defendant went to the Yau Tong Post Office (‘Post Office’) and asked to collect a registered parcel sent from Canada with the purported recipient named as “KHAN HAMZA” and addressed to “Rm 1301, Lei Hing House, Lei Yue Mun Estate”.  The defendant was unable to provide the required mail notification card that was sent to the addressee’s mail-box. The staff declined the defendant’s claim and so the defendant left the Post Office.

4.  Feeling suspicious, the staff of the Post Office reported the incident to the police.  Police investigated with the address of the recipient.  The unit was rented by a 74 year’s old Chinese lady, i.e. not any person by the name “KHAN HAMZA”.

5.  On 15 March 2018 at about 4pm, the defendant returned to the Post Office and he produced a mail notification card to collect the parcel.  Acting on police instruction, the staff asked the defendant to leave his mobile phone number behind and told the defendant that he would call him when the parcel became ready for collection.

6.  On 16 March 2018 in the morning, the staff of the Post Office called the defendant’s mobile number and told the latter that the parcel was ready for collection.  The defendant attended the Post Office and following his producing the mail notification card, he collected the parcel.  Police thereafter intercepted the defendant outside the Post Office.  Upon a body search, police found inside the parcel a metal box containing one plastic bag containing 115 grammes of herbal cannabis.

7.  CCTV footage at Lei Hing House on 15 March 2018 at around 3:50pm depicted that the defendant took out a green mail notification card from Room 1301’s mailbox with the use of a stick.

Charge 3 – False instruments

8.  Police then searched the defendant’s home.  Upon search, the police found the following inside a cupboard in defendant’s bedroom:-

(i)  Two copies of false HKID card printouts respectively in the name of “KHAN HAMZA” and “JACKSON Carl” (but both with the same HKID number);

(ii)  One false electric bill addressed to “KHAN HAMZA” purportedly issued by “CLP Power”;

(iii)  One false monthly statement addressed to “JACKSON CARL” purportedly issued by “Bank of China”.

Charge 5 – Counterfeit banknotes

9.  The police seized a desktop computer in the defendant’s bedroom.  Police later opened up the desktop computer case and they found 24 counterfeit US$100 banknotes hidden in the case.

ADMISSIONS

10.  Parcel collection and mail notification card

(i)  The defendant admitted taking the said mail notification card from the mailbox of Room 1301 of Lei Hing House. His former co-worker, a man named Saad, instructed him to get the said notification card at the mailbox and then to go to the Post Office to collect the said parcel. He was then arrested when he left the Post Office;

(ii)  Regarding the parcel, he claimed that he acted on Saad’s instructions. Saad promised to give him HK$500 as reward for getting the said parcel.

False documents

(iii)  The defendant admitted that Saad gave him all the false documents in case the staff of the Post Office asked him for verification during the parcel collection.

Counterfeit banknotes

(iv)  The defendant claimed that Saad gave him the 24 counterfeit banknotes as gifts. The defendant latter claimed that those counterfeit banknotes were rewards given by Saad for the defendant’s picking up a parcel earlier.

CRIMINAL RECORDS AND PERSONAL BACKGROUND

11.  The defendant is now 23 years old. He has three convictions in two court appearances, namely for the offences of theft from vehicle and criminal damage in 2014 and theft in 2016. The defendant was put on probation on both occasions.

12.  The defendant’s father worked for 20 years as a security guard before retiring in Pakistan.  His mother works as an Urdu interpreter in hospitals on an appointment basis. He has a younger sister who is studying at City University of Hong Kong and a young brother who is in primary school.  His mother and sister know of the circumstances of his offending; they have visited him regularly while he has been in pre-trial custody and are supportive of his rehabilitation.

13.  The defendant finished his education in Hong Kong. Although he did not obtain high results on his DSE exams, he persevered in his studies. He obtained his Bachelor of Science in Information Technology for Business in October 2019 with Coventry University (a top-up programme run in collaboration with City University of Hong Kong).

14.  From 2016 to 2018, the defendant held down several short-term positions in different restaurants. It was while working he met Saad and came under his negative influence.  As a result of the current charges, the defendant has yet to find employment in his field of training.  He very much hopes, once these charges are behind him, he can find a good job in the computer science/information technology field and begin to earn income to support his mother and two younger siblings. 

MITIGATION AND SENTENCE

15.  In sentencing, I take into consideration the whole circumstances of the case including its nature and facts, background of the defendant, as well as mitigation put forward on his behalf by Mr Young.

DELAY

16.  Mr Young submitted that after the defendant was arrested in March 2018, the police laid charge on him 16 months until July 2019. The defendant has been unfairly prejudiced in that he has been denied the benefits and protection under section 109A of the Criminal Procedures Ordinance, Cap 221. There is no reason why the police could not have charged him before his 21^st birthday on 3 June 2018.

17.  Despite delay in prosecution being recognized as a possible mitigating factor that can be taken into account when sentencing. However, the real question whether there has been an unreasonable delay: see Secretary for Justice v Schmitt Charles Lee CAAR12/2006.

18.  According to the prosecution, due to the transnational element of foreign currency and dangerous drug, time had been spent by the police to look into the defendant’s computer to find out he contact of Saad; to contact the Interpol to find out the origin of the parcel; to check the authenticity of the counterfeit bank notes by the Commercial Crime Bureau and to seek legal advice from the Department of Justice.

19.  I am satisfied that the prosecution had not been at fault for the time spent between the arrest and the charges in March 2018 and July 2019. I find that delay has been caused by difficulties in investigating the offences committed by the defendant. In my view, in any event, the period of delay in the present case is reasonable in the circumstances.

20.  Furthermore, the defendant is 20 years and 9 months old when he committed the offence.  It is totally unrealistic for the police to lay charges against the defendant within the three months’ time frame.

Charge 1 – Trafficking in dangerous drug

21.  Mr Young submitted that it is well accepted that herbal cannabis is four times weaker than cannabis resin and accordingly a benchmark tariff sentence of four months’ imprisonment for 2,000 grammes of herbal cannabis has been applied by the courts: HKSAR v Chor Lui [2001] 3 HKLRD 95, HKSAR v Butt Muhammad Gulzar [2020] HKCA 597.

22.  The defence submitted a mitigation letter from Father John Wotherspoon where the defendant has indicated his willingness to help in the anti-drug campaign to warn people about the danger of collecting parcels for other people.  The defendant would do this by writing articles for the website and by preparing a YouTube video.

23.  In view of the relatively small quantities of 115 grammes of herbal cannabis, for Charge 1, I adopt a starting point of 12 weeks.  After giving a full one third discount for his guilty plea, the resulting sentence is 8 weeks’ imprisonment. I give the defendant an extra 1 week off for his participation in the anti-drug campaign.  The sentence is therefore 7 weeks.

Charge 3 –Possession of false instrument

24.  This offence carried a statutory maximum of 14 years’ imprisonment.

25.  The false instruments consisted of four pieces of paper: copies of two Hong Kong identity cards, a CLP Power electricity bill, and a Bank of China monthly statement.  They were found inside a cupboard in the defendant’s bedroom.  According to the defendant in his VRI statement, these false instruments were given to him by Saad to use in case the post office asked for more identification.

26.  Mr Young submitted to me a number of authorities in relation to the use of forged credit cards.  I find that those authorities should not be used as comparable as there is no evidence that the seized false documents have actually been used for the application of credit cards.  No evidence the defendant ever presented or used these documents to try to deceive or mislead anyone in March 2018. 

27.  Of course, I do not lose sight of the risk of prejudice to the bank because had these documents been used undetected, the defendant and those to whom he passed the documents on could use them for deceitful purpose.  I am looking at the inherent risk in the nature of the documents themselves and the detriment to the community resulting in their possible use.

28.  For Charge 3, I would use 15 months as the starting point and, after giving the one-third discount, the sentence is reduced to 10 months.

Charge 5 – Custody or control of counterfeit currency notes

29.  The offence of having counterfeited notes in the custody, intending to pass or tender them as a genuine note, should carry a maximum of 14 years’ imprisonment on conviction in the indictment.

30.  It is, therefore, fair to say that these offences are very serious offences and that deterrent sentence are usually called for.

31.  There are no sentencing guidelines as the circumstances of each case may vary tremendously.  Counsel in mitigation has put forward 4 sentencing examples for my reference. 

32.  In HKSAR v Leung Wai Han CACC 102/2002, the defendant faced two charges of possessing forged Hong Kong notes in total amount of $3,320.  The Court took 2.5 years starting point on each charge.

33.  In HKSAR v Huang Yihao DCCC 236/2009, the defendant possessed counterfeit notes of CNY1300 to 1400.  The court adopted a starting point of 2 years.

34.  In HKSAR v Ho Yin-fung DCCC 686/2009, an 18-year-old who made fake HK$10 bills and used 45 of them for bus fare.  The court imposed a 200 hours’ community service order.

35.  In HKSAR v Borrill Charlotte Marie [2019] HKDC 1456, the defendant who was 20 years old, passed off counterfeit HK$500 to pay taxi driver.  The court adopted a starting point of 18 months.

36.  I have carefully considered these cases submitted to me.  There are no sentencing guidelines for this kind of offence. Every case must depend on its own facts.

37.  In my view, it is true that the purported face value of 24 forged US$100 bank notes is relatively low.  However, the use of counterfeit currency undermines the confidence of Hong Kong currency system and Hong Kong as a financial city generally.

38.  I have had the advantage of having seen the banknotes.  The prosecution had made ready a real US$100 bank notes for my comparison.  I find that the counterfeited notes are highly sophisticated forgeries.  They can be easily fool people if they were not alerted to their existence as forgeries. This is an important consideration in sentencing: HKSAR v Wong Hoi Yat, Andy and others [2006] 3 HKLRD 150, R v Yip Moon-kwan and others, Cr. App. 220 and 210 of 1994

39.  In the end, for Charge 5, I would adopt a starting point of 2.5 years. After the plea, the defendant shall receive a sentence of 20 months’ imprisonment.

TOTALITY

40.  The last question is totality.  The three charges relate to three separate offences. I do note that all the offences were committed on different occasions and can potentially be served consecutively. 

41.  Mr Young strongly urged the court to consider calling for Detention Centre report before sentence.

42.  In any other offences, the age of the offender was to have the result of persuading the court in adopting a different sentencing principle, namely from one of deterrence to that of rehabilitation. Yet, having considered the gravity of the offences, I am not satisfied that Detention Centre is sufficient punishment for the gravity of these offences, or sufficient deterrent for other youngsters who might be tempted to commit the same.

43.  Besides, the defendant is not of clear record.  He had been put under probation on two previous occasions.  He did not grasp the opportunities to reform himself but to commit crimes of this serious nature.

44.  I take the view that these offences were so serious that a sentence of imprisonment is the only option available. If I call for reports, it would only raise false hopes to the defendant.

45.  In R v Au Ka Fai and Anor [1989] 1 HKLR147, it was emphasized that if the court concludes that a sentence of imprisonment is the only realistic option, it should not call for reports.

46.  Mr Young also urged me to consider suspending the sentence. I do not consider there exists any sufficient special circumstances which justify this course of action.

47.  Having said that, however, I am most impressed that despite being arrested in March 2018, the defendant demonstrated his determination to excel himself by continuing with his study and obtained his Bachelor of Science in Information Technology for Business in October 2019 with Coventry University. Even what the defendant had committed are serious, on this matter, a lenient view is justified so that the defendant can reunite with his family and to turn over a new leaf.

48.  I consider that the overall total sentence of 20 months’ imprisonment is sufficient in this case for this defendant.  I order all sentences to be run concurrently, and the final sentence will be one of 20 months’ imprisonment.