HKSAR v. CHOW CHUNG HO

DCCC 1230/2023

[2024] HKDC 1002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1230 OF 2023

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to:

(1)  1 charge of conspiracy to pass or tender counterfeit currency note, contrary to sections 99(1)(a), 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 1);

(2)  1 charge of passing or tendering counterfeit currency note, contrary to section 99(1)(a)  of the Crimes Ordinance, Cap 200 (Charge 2); and

(3)  1 charge of having custody or control of counterfeit currency notes, contrary to section 100(1)  of the Crimes Ordinance, Cap 200 (Charge 3).

Summary of Facts

2.  The Summary of Facts admitted by the Defendant is as follows:

The incident

(1)  Mr Cheung Ka Kit (PW1)  was the owner of a restaurant at Shop No 14A, Ground Floor, Ho Sing Building, No 28 Kam Fai Path, Yuen Long, New Territories (the Restaurant). On 10 June 2023, at around 4:20 pm, PW1 was the only person working at the Restaurant when an unknown male (Male A)  placed an order for a set of stinky tofu for HK$38. Male A paid with a piece of counterfeit HK$500 banknote (Exh 1)  and received HK$462 from PW1 as change. Male A then informed PW1 that another person would pick up the order from the Restaurant shortly. In about three minutes the Defendant picked up the stinky tofu from the Restaurant.

(2)  At the same time, the Defendant placed another order with PW1 and paid with another piece of counterfeit HK$500 banknote (Exh 2). Realizing that the quality of Exh 2 was very rough, PW1 checked the authenticity of Exh 1 and Exh 2. Feeling suspicious, PW1 stopped the Defendant and reported the case.

(3)  PC60780 (PW2)  arrived at the scene at 4:50 pm on the same day. Upon inquiry, 4 other pieces of counterfeit HK$500 banknotes (collectively Exh 3)  were found in the Defendant’s right trouser pocket with the exact serial number as Exh 1 and 2. At 4:56 pm, PW2 arrested the Defendant for passing and possessing counterfeit banknotes.

(4)  Counterfeit Currency Expert confirmed that Exh 1, 2 and 3 were counterfeit banknotes.

The Offences

(5)  At all material times, the Defendant on or about 10 June 2023, in Hong Kong, conspired with another person to pass or tender as genuine, Exh 1, which was, and which they knew or believed to be a counterfeit of a currency note (Charge 1);

(6)  At all material times, the Defendant on 10 June 2023, at the Restaurant, in Hong Kong, passed or tendered as genuine, Exh 2, which was, and which he knew or believed to be a counterfeit of a currency note (Charge 2);

(7)  At all material times, the Defendant on 10 June 2023, at the Restaurant, had in his custody or under his control Exh 3, which were, and which he knew or believed to be counterfeit currency 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 (Charge 3).

The Defendant’s background

3.  The Defendant is 33 years old, married and has a 4-year-old daughter.  He was educated up to Form 5 level and has worked in restaurants, construction sites and in the transportation trade.  He has 3 previous criminal convictions, 2 of which involved dishonesty.

Starting point

4.  These are very serious offences.  The maximum sentence for each of the above offences is 14 years’ imprisonment.  There are no sentencing guidelines or tariffs but substantial sentences of imprisonment are the norm.

Discussion

5.  The Defence relied on the following cases:

A. HKSAR v Leung Wai Han [2002] HKCU 1096 (CACC 102/2002, 3 September 2002, unreported)

(1)  On 1 October 2001, a woman found a purse at the junction of Shanghai Street and Nanking Street and handed it to a police officer. In the purse was the Defendant’s Hong Kong Identity Card, her Home Visit Permit and what appeared to be eleven $100 bank notes and a $20 bank note. The Applicant was located by the police later on the same day. She explained that she had lost her purse when she was out shopping and claimed that the bank notes do not belong to her. On 3 October 2001, 2 police officers stopped the Applicant outside 27 Ning Po Street. Upon search of her handbag, the police found what appeared to be 22 $100 notes. The Applicant was arrested and it was subsequently confirmed that all the notes found on 1 and 3 October were counterfeit banknotes.

(2)  The Applicant pleaded guilty to 2 charges of custody or control of counterfeit notes with intent to pass them as genuine (Charges 1 and 2), a charge of possession of an Identity Card relating to another person (Charge 3)  and possession of a dangerous drug (Charge 4).

(3)  The Applicant had 5 previous convictions, 2 of which were for offences of dishonesty.

(4)  The Judge adopted a starting point of 2½ years’ imprisonment for each of Charges 1 and 2, reduced to 18 months for each offence, 6 months of the sentence in Charge 2 was ordered to run consecutively to Charge 1. She appealed against the sentence on those 2 charges.

(5)  The Court of Appeal pointed out that there are no tariffs for custody or control of counterfeit banknotes. In sentencing, the Judge, quite properly took into account the intention of the legislature as indicated in the maximum penalty of 14 years’ imprisonment. Although the purported face value of all the forged bank notes was relatively low, the Judge rightly pointed out that the use of these notes was an ongoing evil. Although the time between the commission of the two charges was short, only 2 days, the charges are two separate and distinct offences, ones occurring at different times and places. It was well settled that, subject to the question of totality, consecutive sentences should be considered and imposed in these circumstances. It was as equally well settled that 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 been one offence.

(6)  The Court of Appeal held that an overall sentence of 2 years imprisonment for the 2 charges was not manifestly excessive and dismissed the Applicant’s application for leave to appeal.

B. HKSAR and Wong Hoi Yat and others [2006] 3 HKLRD 150

(1)  The 3 Defendants were arrested during a police raid of the premises, where 3,450 counterfeit $500 banknotes and equipment for making counterfeit banknotes (a printer, ink cartridges and real currency)  were found.

(2)  The 3 Defendants were charged with manufacturing counterfeit banknotes (Charge 1)  and a charge of custody or control of counterfeit banknotes (Charge 2). The 1^st Defendant was also charged with custody and control of equipment and materials for making counterfeit currency (Charge 3).

(3)  The 1^st Defendant pleaded guilty to all 3 charges, the Judge adopted a starting point of 9 years’ imprisonment for each charge, reduced to 6 years for the guilty plea, to be served concurrently. The 1^st Defendant appealed against that sentence.

(4)  The Court of Appeal held that:

(i)  Whether the starting points adopted were manifestly excessive was to be considered in the light of a number of factors, including the scale of the manufacturing operation, the quantity, value and degree of sophistication of the counterfeit copies, the nature and efficacy of the paraphernalia, the length of time for which the offences have been carried on and the role(s)  and background of individual Defendants;

(ii)  The overriding principle was that making counterfeit notes was an extremely serious offence that clearly called for a heavy and deterrent sentence. Subject to this principle, where a large quantity of counterfeit notes was involved but the scale of the manufacturing operation was not too large, the usual starting point was 5 to 6 years’ imprisonment. Where, on the other hand, the case involved a large quantity of counterfeit notes and a particularly large scale of operation and other aggravating circumstances, the starting point might be as high as 11 years’ imprisonment…

(iii)  Although the operation was well-established and the counterfeit notes in question were very similar to genuine notes, all the notes were solely in Hong Kong currency, and there was no evidence that a large quantity of those notes was already in public circulation. The Defendants’ degree of culpability did not warrant the starting points adopted.

C. 香港特別行政區 訴 李浩然 CACC 128/2013

(1)  On 6 January 2013, the Applicant attempted to use a counterfeit $100 banknote to purchase vegetables worth $11. The banknote was rejected by the vegetable stall. The Applicant then took out a genuine banknote to complete the purchase. The stall staff felt suspicious and reported the matter to the police. The Applicant tried to leave but was stopped. The Applicant then tried to dispose of a total of 26 counterfeit $100 banknotes. The police arrived and found a total of 27 counterfeit $100 notes on the Applicant. Under caution, the Applicant admitted that he purchased the 27 counterfeit notes in Shenzhen for $500. He pleaded guilty to a charge of tendering a counterfeit banknote and a charge of custody and control of counterfeit banknotes. The Judge sentenced the Applicant to 3 and 4 years for those charges respectively, to be served concurrently.

(2)  The Applicant had 9 previous convictions, one of which was similar.

(3)  The appeal against sentence was allowed. The Court of Appeal reiterated that tendering and custody of counterfeit banknotes were very serious offences. Not only do these offences affect the financial market, they cause others to suffer financial loss. Although there are no sentencing guidelines, relevant factors for sentence include the amount, the value and the quality of the counterfeit banknotes. The face value of the counterfeit banknotes was an important factor.

(4)  There were only 27 counterfeit $100 banknotes, i.e. a face value of $2,700. The quality of the banknotes was not high. Similar previous convictions is an aggravating factor.

(5)  The Court of Appeal referred to HKSAR v Li Tsz Chung (CACC 312/2011 and CACC 314/2011)  where it was held that a starting point of 2 years’ imprisonment was appropriate for a charge involving one counterfeit $500 banknote. The Court also referred to HKSAR v Leung Wai Han (supra), where it was held that a starting point of 2½ years was appropriate for the possession of 33 counterfeit $100 notes.

(6)  The Court of Appeal held that the Applicant had a number of previous convictions, one of which was similar. The Applicant committed the offences shortly after he was released from prison for a similar offence.

(7)  The Court of Appeal held that the appropriate starting point for tendering a counterfeit $100 banknote (Charge 1)  and possession of 27 counterfeit $100 banknotes were 3 years’ imprisonment and 3½ years’ imprisonment respectively, reduced to 2 years and 2 years and 4 months on account of plea, to be served concurrently.

6.  The Court of Appeal has emphasized on many occasions that each case depends on its own facts and that the sentences in other cases are of limited guidance.  There are marked differences between the present case and those cited by Counsel.

7.  In Leung Wai Han, the Applicant was only convicted for possession of counterfeit banknotes.  There was no evidence that she had used them.  Further, the Applicant in that case acted alone, whereas in the present case, the Defendant committed Charge 1 with another person.

8.  Wong Hoi Yat (supra)  involved the manufacturing of counterfeit note and is much more serious.  Although general sentencing principles apply, the starting points in that case are clearly inappropriate for the present case.

9.  The amount involved and the quality of the counterfeit banknotes in Li Ho Yin (supra)  is most similar to the present case.  However, the Applicant in that case acted alone whereas the Defendant committed Charge 1 with another. Although the Defendant does not have any previous convictions in respect of counterfeit banknotes, he has 2 previous convictions for dishonesty, the latest one was for theft in May 2023 and he committed the present offences shortly after that conviction.

10.  Having considered the facts of the present case and Counsel’s submissions, I am of the view that the appropriate starting point for each of the charges in the present case is 3 years’ imprisonment.

Mitigating Factors

11.  The Defendant has pleaded guilty at the first opportunity.  I give him the full one-third discount for his plea.  The sentence for each Charge is reduced to 2 years’ imprisonment.

12.  Counsel submitted that the Defendant is deeply remorseful.  However, remorse is already included in the discount given for a guilty plea: Ngo Van Nam [2016] 5 HKC 1.  It is trite law that the Defendant’s financial difficulties and the lack of benefit from the crime are not mitigating factors. In other words, apart from his guilty plea, there are no other mitigating factors.

Totality

13.  Counsel submitted that Charge 2 was committed only minutes after Charge 1.  Although the time between Charges 1 and 2 was only a few minutes, Charge 2 relates to a different counterfeit note.  Not only is it a separate offence, it makes the facts of the case more serious.  Further, committing Charge 2 shortly after the commission of Charge 1 is in fact an aggravating factor.  I order that the sentences in Charges 2 and 3 to be served concurrently.  However, 6 months of Charges 2 and 3 are to be served consecutively to Charge 1.  That is an overall sentence of 30 months.