HKSAR v. CAO HUIFANG

DCCC 576/2020

[2021] HKDC 214

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 576 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four charges today. They are an offence of passing or tendering counterfeit currency notes, which there are two, and a third offence of having custody or control of counterfeit currency notes, and finally a charge of remaining in Hong Kong without the authority of the Director of Immigration.

2.  The facts show the defendant passed or possessed some HK$2,100 of counterfeit notes in a mah-jong club on 19 March 2020.  She has agreed the facts of the case.  They can be very simply stated; is that the defendant owed money to the mah-jong club and she paid some $900 of a debt in what were counterfeit notes in order to release herself from a debt to that mah-jong club and she did that at the club on 19 March 2020.  She then went into the club and paid another $100 by way of a counterfeit note to take part in a game of mah-jong at the club.

3.  Finally, she was intercepted in the club.  The notes were put together and in total she was found to be in possession of some HK$2,100 worth of counterfeit notes, and that is the 3rd charge.  So the gravamen of the offence really is her possession and use of that $2,100 on 19 March 2020.

4.  Finally, following investigation, she was found to be illegally here in Hong Kong.

5.  As far as her background is concerned, she is now aged 47, she comes from the Mainland and has had a two-way permit in order to enter Hong Kong.  She worked as a beautician in Shenzhen up to 2018.  She has family, I am told.  Even though she is divorced, I am told she has a child who is a student who is 19 in the Mainland.

6.  There are two previous convictions in relation to breaches of condition of stay for which she was sentenced to suspended sentences on both occasions.  They are not in fact particularly relevant to sentence today.

7.  As far as the sentences for the charges are concerned, it is clear that in respect of the charges of possession or custody, or passing or tendering the counterfeit currency, there is in fact no actual guidelines set down.  There is a case in which it was discussed by the Court of Appeal, HKSAR v Leung Wai Han, CACC 102/2002, where the judge, in sentencing similar offences of the custody and control of counterfeit notes, took a starting point which in fact was in the region of 2½ years’ imprisonment in respect of the particular facts of that case.

8.  I have been referred by counsel to at least two other cases in the District Court where a different approach to sentencing has been taken, in cases which are of a similar or lesser degree of gravity than the current case.

9.  As far as the 4th charge is concerned, there is guideline sentencing - there has been for a long time and it is very well known - and that is the starting point of sentence of 15 months’ imprisonment.  Sorry, the sentence will be 15 months’ imprisonment after deduction of one-third for a plea of guilty.

10.  Having regard to the nature of these crimes, because the possession of counterfeit currency is a serious matter and can be sentenced to up to 14 years’ imprisonment so it has to be taken seriously by the courts, what I shall do is impose the following sentences in respect of these charges.  On the three charges in relation to the counterfeit currency, that is Charges 1, 2 and 3, I will take a starting point of 18 months’ imprisonment, reduce that to 12 months’ imprisonment for the plea of guilty.  I will order that those sentences be served concurrently to each other, having regard to the fact they were all committed on the same day.  They basically form part of one incident.  As far as the 4th charge is concerned, there will be a sentence of 15 months’ imprisonment.

11.  These offences were committed while the defendant was illegally in Hong Kong; that is an aggravating factor.  I will take account of that by ordering that 6 months of the 4th charge be served consecutively to the first three charges, leaving a total of 18 months’ imprisonment for these offences.