HKSAR v. BORRILL CHARLOTTE MARIE

DCCC 23 & 156/2019 (Consolidated)

[2019] HKDC 1456

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 23 & 156 OF 2019

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REASONS FOR SENTENCE

I need only to deal with D2 at this stage. She faces a charge of "Passing or tendering a counterfeit note" (Charge 6) and a charge of "Conspiracy to make counterfeit notes" (Charge 7), both jointly with JAJBIR Singh (D1).

2.  D2 pleaded guilty to Charge 6.  The prosecution applied to leave Charge 7 in the court file; not to be proceeded against her without leave of court.  I granted the application.

Summary of Facts

3.  In the evening on 22 July 2018, D1 and D2 checked into Room 2101 of iclub Ma Tau Wai Hotel ("the Hotel").  Thereafter, the Police kept them under observation.

4.  About 5:55 a.m. on 23 July 2018, D1 and D2 were seen boarding a taxi outside the Hotel. After alighting from the 1^st taxi at Gascoigne Road, they boarded a 2^nd taxi and returned to the Hotel.

5.  Enquiries with the taxi drivers revealed that D2 gave the 1^st driver a suspected counterfeit $500 note with serial number DU 202708 to pay for their taxi fare.  She then received genuine banknotes in the sum of $470 as change. In a subsequent identification parade, the 1^st driver identified D2 as the person who paid him the taxi fare.

6.  About 2:30 p.m. on 23 July 2018, D2 extended her stay at the Hotel for one more night and paid the rent with genuine banknotes including the genuine $500 note with serial number DU 202708.

7.  About 3:15 a.m. on 24 July 2018, police officers entered Room 2101 of the Hotel pursuant to a search warrant.  They found D1 and D2 inside and arrested them.

8.  In a video recorded interview conducted on the same day, under caution, D2 admitted, inter alia, that D1 was her boyfriend.  She stayed with him at the Hotel because she had no place to stay.  On 22 July 2018, 2 Indian males came to their room to chat with D1 for 15 to 20 minutes.  She did not know what they were talking about since she was sleeping.  In the next morning, she and D1 took a taxi to go for breakfast.  On the taxi, she discovered a counterfeit $500 note in her handbag.  D1 took it out from her handbag and told her it was fake.  After giving the counterfeit note to the driver, they immediately took another taxi back to the Hotel and slept till 2:00 p.m. that day.

9.  A Government Chemist examined the suspected counterfeit $500 note and found that it was printed by inkjet printing method.  It was copied from the genuine $500 note bearing serial number DU 202708, which was used by D2 to pay for the extension of her stay at the Hotel.

Mitigation & Sentence

10. D2 is 20 and has a clear record. She was born in Hong Kong to a British father and an Indonesian mother. She attended secondary school in England and returned to Hong Kong when she was 17. Her counsel Ms. Crebbin informed me that D2 had a falling out with her parents and left home when she was still 17. Letters from D2's father and her former teacher were placed before me; their contents are duly noted.

11. In mitigation, Ms. Crebbin submitted that after D2 left home, she mixed with some undesirable people. And through those people, she met D1, who told her that he was only 20 and a Hong Kong resident. D1 offered to help D2 find a place to live and they entered into an intimate relationship. D2 has never met D3 or D4 in the present case. It was not until she first appeared at the magistracy, she discovered that D3 was also D1's girlfriend and carrying his child. This was a major shock for D2. Ms. Crebbin stressed that at the time of the offence, D2 had no idea that D1 or anyone else was involved in counterfeiting banknotes.

12. Regarding Charge 6, Ms. Crebbin submitted that D2 did not know about the counterfeit $500 note in her handbag until she was in the taxi and D1 asked her to use it to pay the driver. She did what she was told without thinking too much about it. There was no time to do so anyway.

13. Based on the materials before me, I accept Ms. Crebbin's submission that at the time of the offence, D2 probably had no knowledge of D1's or other people's involvement in counterfeiting banknotes. I also accept that although D2 knew that she was passing a counterfeit note, she gave it to the taxi driver simply because D1 told her to do so.

14. What D2 had experienced was indeed tragic and sad. Leaving home in her late teens made it likely for her to mix with undesirable peers and became a vulnerable target of exploitation by people like D1. I hope D2 has learned a bitter lesson. The most important thing now is for her to go home to her parents and mend their relationship. D2 is still young and there is a future for her if she is determined enough to start afresh.

15. For the purpose of sentencing D2 only, if treating Charge 6 as a one-off incident, I should normally consider other sentencing options such as Rehabilitation Centre Order, Community Service Order, Probation Order or suspended sentence. On the other hand, Ms. Crebbin informed me that D2 has been remanded in jail custody for 15 months since her arrest. This is a factor which I cannot overlook.

16. In my view, D2 has received adequate punishment for losing her freedom in the past 15 months. Imposing any non-custodial sentence on her or putting her in a correctional institution for young offenders may well amount to double jeopardy. Sentencing her to a term of imprisonment which would allow her immediate release seems to be appropriate and just.

17. Ms. Lo for the prosecution confirmed that there are no sentencing tariffs or guidelines for offences related to counterfeit notes. Ms. Crebbin has submitted a few cases on sentencing for my reference, but the criminality in most of them are far more serious than Charge 6 in the present case. I find the decision in HKSAR v Khan Sajid DCCC 623/2013 more comparable to D2's situation.

18. Only 1 counterfeit $500 note was used by D2, which was also the loss suffered by the 1^st taxi driver (i.e. the taxi fare due to him plus the $470 he gave to D2 as change). D2 was only 19 when she committed the offence. As she appears to have been relying on D1 to provide for her daily living, I consider that to a certain extent, she could have been unduly influenced by D1. In my view, the appropriate starting point for Charge 6 is 18 months' imprisonment. With the timely guilty plea, the sentence is reduced to 12 months. I sentence D2 to 12 months' imprisonment.