HKSAR v. VAN LEUVEN ALAN EDWARD

DCCC 388/2019

[2020] HKDC 680

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 388 OF 2019

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REASONS FOR SENTENCE

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Charges

1.  The defendant, a Form 8-holder, faces one charge of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance, Cap 200 (“Charge 1”), one charge of making counterfeit notes, contrary to section 98(1) of the Crimes Ordinance, Cap. 200 (“Charge 2”) and one charge of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 (Charge 3).

2.  He pleaded guilty to Charges 1 & 2 whilst pleaded not guilty to Charge 3.

3.  At the outset of the trial of Charge 3, the defence made an application to permanently stay the proceedings.  That application was refused.  The defence then informed the court that the defendant decided to change his plea to one of guilty for Charge 3 and he did so subsequently.

Facts

4.  The facts upon which the defendant admitted to for all 3 Charges reveal the followings:

4.1 On the 6^th day of August 2018 the defendant was intercepted by the police in the To Kwan Wan region. The police subsequently found on the defendant’s person 240 pieces of forged HK$500 banknote.

4.2 The defendant also had with him, at the time, keys to a premises nearby. The police escorted him to that premises for a search where (a) a laptop computer (b) 3 printers, (c) a paper cutting board (d) 9 forged HK$500 banknotes, (e) 30 forged HK$1,000 banknotes, (f) 35 sheets of A4-sized paper each containing images resembling HK$500 banknotes and (g) 225 sheets of A4-sized paper each containing images resembling HK$1,000 banknotes were found.

4.3 The police counterfeit expert considered the said 279 forged banknotes in question were similar to genuine Hong Kong currency notes in terms of image, colour and size, and that they resembled Hong Kong currency notes to such an extent that they were capable of passing for currency notes. As for the said banknote images printed on the 260 pieces of A4-sized paper, the police counterfeit expert confirmed that they were images of Hong Kong currency notes.

4.4 In a subsequent video-recorded interview, the defendant stated that he had stayed overnight at the said premises for about 3 to 5 times in the preceding two weeks.

4.5 On the 7^th August 2018, whilst examining the mobile phone seized from the defendant, the police found between the mobile phone and its plastic case a Hong Kong identity card issued to one JACKSON Thomas Napier, who had lost the same in June 2018.

Mitigation

5.  Mr. McNamara had prepared a thorough written submission in mitigation on behalf of the defendant. He further supplemented the same orally.

6.  This court was told that the defendant, a 49-years-old man, was born in the USA. He was educated to tertiary level in the States.  He spent 2 years in the US Marine Corps and then worked as a Technician and Technical Director on many entertainment projects in the States before coming to Hong Kong in 2002. He then worked in similar fields in Hong Kong until 2008.

7.  This court was further told that the defendant got married to a Hong Kong lady in the States back in 1998.  The defendant came to Hong Kong on the strength of a dependant visa.  The same, however, was revoked in 2010. He then lodged a claim for the determination of his status as a torture victim and had been a Form-8 Recognizance holder ever since.

8.  Mr. McNamara submitted that the defendant’s torture claimant status since 2010 meant that he was not able to take up any employment in Hong Kong; and the offences in question were committed by him due to his desperate need of money.

9.  Mr. McNamara also submitted that the defendant’s father is, as of now, having serious medical problems.  A copy of an email from the defendant’s mother mentioning the elderly gentleman’s current condition was provided to this court.  Mr. McNamara submitted that it is the wish of the defendant to return to his parents in the States once his sentences in the instant case are served.

10.  Mr McNamara drew the attention of this court to the case of HKSAR v Wong Hoi-yat and Others [2006] 3 HKLRD 151 in which a 5 ½ years’ imprisonment was deemed appropriate by the Court of Appeal as the starting point for a defendant (who was found not to be the directing mind of the operation) for making 3,450 pieces of counterfeit HK$500 banknotes.

11.  Mr McNamara further submitted that the operation in the instant case was small scaled, unsophisticated and rudimentary.  The quantity of the counterfeit banknotes was far less than those in HKSAR v Wong Hoi-yat and Others (supra).  The defendant was not the directing mind behind the operation.  His reward was to be a few thousand dollars. The Defendant was not the owner or the tenant of the premises in question. There was no evidence of the length of the operation.  Judging from the available information, it can safely be assumed that no such banknotes were in circulation

12.  Mr. McNamara therefore submitted that a starting point of significantly lower than 5 ½ years’ imprisonment should be adopted in the instant case insofar as Charge 2 is concerned.

13.  In relation to Charge 3, Mr. McNamara told this court that the Pakistani male who rented the premises in question was the prime mover and mastermind behind this enterprise and it was he who gave the defendant a phone case as a gift. It was also he who gave the identity card in question to the defendant who subsequently placed the same in the phone case.

14.  Mr. McNamara also referred this court to the case of HKSAR v. Tran Viet Thanh [2012] HKLRD 903 and submitted that in the case of someone coming legally to Hong Kong and charged with possession of an identity card belonging to another, a sentence of 12 months’ imprisonment should be imposed.

15.  This court was urged by Mr. McNamara that the defendant is genuinely remorseful. Aside from his guilty plea, information was provided by him on several occasions since his arrest albeit the same was eventually deemed by the police to be of no assistance.  Mr. McNamara however urged this court to take into account such willingness to cooperate on the part of the defendant as indication of his remorse and good attitude.

Sentence

16.  Charges 1 and 2 both carry a maximum sentence of 14 years’ imprisonment on conviction on indictment.  They are serious offences indeed.  Criminal activities as such affect the very core of our financial system and must therefore be deterred.

17.  The defendant had been sentence by the courts on 4 different occasions in the past, the last of which involved one charge of conspiracy to making counterfeits of currency notes in April 2016.  He is therefore a repeated offender insofar as Charges 1 & 2 are concerned.

18.  Further, at the time of committing Charges 1 & 2, the defendant was a Form-8 Recognizance holder.

19.  Charge 1 involved 240 pieces of forged HK$500 banknotes with a total face value of HK$120,000.  Having considered the relevant facts, submissions made on behalf of the defendant as well as the principles enunciated in R v. Ngan Chun Yee unrep. CACC 137/1984 and HKSAR v. Hu Wanxia [2009] 4 HKLRD 449, the appropriate starting point for Charge 1 is one of 4 years’ imprisonment.

20.  The said starting point of Charge 1 will be enhanced for an additional 3 months to reflect the aggravating factor of the defendant’s Form-8 status at the time when the offence was committed.

21.  This court will further enhance the said starting point of Charge 1 for yet another additional 3 months due to the defendant being a repeated offender.

22.  The defendant is entitled to a full 1/3 discount of his timely guilty plea.

23.  The sentence for Charge 1 is therefore one of 3 years’ imprisonment.

24.  As for Charge 2, the Court of Appeal stipulated in HKSAR v Wong Hoi-yat and Others (supra) that for a counterfeits manufacturing operation that “was not too large”, a starting point of five to six years’ imprisonment is appropriate.

25.  Having considered the relevant facts, submissions made on behalf of the defendant as well as the legal principles, the appropriate starting point for Charge 2 is one of 5 years’ imprisonment.

26.  The said starting point of Charge 2 will be enhanced for an additional 3 months to reflect the aggravating factor of the defendant’s Form-8 status at the time when the offence was committed.

27.  This court will further enhance the said starting point of Charge 2 for yet another additional 3 months due to the defendant being a repeated offender.

28.  The defendant is entitled to a full 1/3 discount of his timely guilty plea.

29.  The sentence for Charge 2 is therefore one of 3 years and 8 months’ imprisonment.

30.  Insofar as Charge 3 is concerned, after taking into account of the relevant facts, submissions made by Mr. McNamara and the legal principles involved, this court is satisfied that a starting point of 1 year’ imprisonment is appropriate.

31.  The said starting point of Charge 3 will be enhanced for an additional 3 months to reflect the aggravating factor of the defendant’s Form-8 status at the committed of Charge 3.

32.  The defendant pleaded guilty after the defence’s application of stay of proceedings was refused but before the calling of any prosecution witnesses. After considering all the circumstances, this court is prepared to grant a 1/5 discount for his guilty plea.

33.  The sentence for Charge 3 is therefore one of 12 months’ imprisonment.

34.  Charges 1 & 2 are of similar nature and there was clear nexus between the two. This court is satisfied that sentences for these two Charges should run concurrently.

35.  The same, however, cannot be said regarding Charge 3, which is a separate and distinct offence from that of Charges 1 & 2. Strictly speaking wholly consecutive sentence is called for.  However, having considered the totality principle as well as the aforesaid enhancement made, this court is satisfied 6 months of the sentence in Charge 3 should run consecutively with sentences in Charges 1 & 2.

36.  The sentences for the defendant are as follow:

Charge1: 3 years’ imprisonment.

Charge 2: 3 years and 8 months’ imprisonment.

Charge 3: 12 months’ imprisonment.

37.  Sentences of Charges 1 & 2 are to run concurrently.

38.  6 months of the sentence in Charge 3 is to run consecutively with Charges 1 & 2.

39.  Total sentence of the defendant is therefore 4 years and 2 months’ imprisonment.