HKSAR v. JAJBIR SINGH AND ANOTHER

DCCC 823/2020

[2021] HKDC 917

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 823 OF 2020

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REASONS FOR SENTENCE

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1.  The two defendants, D1 and D2, were each convicted of the following two charges upon their own pleas and admission of the relevant facts.

2.  Charge 1, making counterfeits of currency notes, contrary to section 98(1)  of the Crimes Ordinance, Chapter 200.  This charge involves 73 pieces of $500 Hong Kong currency notes and 54 sheets of paper each containing images resembling $500 Hong Kong currency bank notes having been made in a flat in Yau Ma Tei area between 23 and 31 January 2020.  The total value or the total face value of those notes is HK$63,500.

3.  Charge 3, having custody or control of counterfeiting materials and implements, contrary to section 101(1)  of the Crimes Ordinance, Chapter 200, which involves a printer, a paper trimmer and two gold ink rollerball pens.

4.  There was originally a Charge 2 of having custody or control of counterfeit currency notes but was not proceeded with and left on court file.

The admitted facts

5.  On 31 January 2020, at around 1955 hours, police ambushed outside Room A, the 3^rd Floor, No 157 Reclamation Street, Yau Ma Tei.  A person suddenly opened the door of the room and then immediately stepped back into the room when that person saw the police.  The police then revealed their identity before making the forced entry.  When the police entered the room, D2 was standing next to the main door and D1 was throwing some papers out of the bathroom window.  D1 was holding four sheets of paper each containing images resembling HSBC HK$500 banknotes all bearing the same serial number, NA783583, when he was subdued by Police Constable 13966 in the bathroom.  One HP inkjet printer which was placed on top of a TV cabinet was seen printing out two sheets of paper each containing images resembling HK$500 banknotes all bearing the same serial number.

6.  Upon search, the following items were found inside the room:-

(a)  five counterfeit HSBC HK$500 banknotes all bearing the same serial number behind the printer;

(b)  one sheet of paper containing images resembling HK$500 banknotes bearing the same serial number inside a trash bag;

(c)  one paper box of a HP inkjet printer;

(d)  one paper box of a paper trimmer;

(e)  one plastic bag of lozenge recycled patterned paper inside the paper box of a HP inkjet printer;

(f)  two gold ink rollerball pens;

(g)  two red gel pens;

(h)  one eyeshadow palette;

(i)  one receipt of Wonderland Superstore for the purchase of the said items (e)  to (g);

(j)  three ink boxes;

(k)  some trimmed papers; and

(l)  one mobile phone.

7.  The following items were found on the canopy and the balcony of the lower units of the same building:-

(a)  68 counterfeit HSBC HK$500 banknotes all bearing the same serial number;

(b)  47 sheets of paper each containing images resembling HK$500 banknotes bearing the same serial number; and

(c)  broken parts of a paper trimmer.

8.  D1 and D2 were thus arrested.  Upon body search, a key to that room was found on D1.  One mobile phone and one Aeon receipt for the purchase of the said printer were seized from D2.

9.  Commercial Crime Bureau of the Police Force confirmed all banknotes and partially finished banknotes seized in this case were counterfeits.

10.  Miss Lee Hon-ling and Pandi Gurmeet Singh were lovers and the tenant of that room.  Miss Lee moved out of the room in December 2019 when she ended the relationship with Pandi.  On 28 January 2020 at around 1800 hours, when Miss Lee visited the room, she saw Pandi and two other men.  She also saw a black printer on the cabinet.

11.  CCTV footage of Wonderland Superstore in Hung Hom revealed that D2 entered the shop at around 1539 hours on 23 January 2020.  He shopped for some pens and papers.  The receipt of Wonderland Superstore showed that three packs of plain papers and four pens were sold on the same day.  CCTV footage of AEON revealed that D2 bought a printer from Fortess in Hong Kong also on the same day.  D2 paid for the printer.  The receipt of Aeon showed that a HP printer was sold.

12.  Dr Janesse Hui, forensic scientist, had the following findings:-

(a)  all the 73 banknotes seized were counterfeits;

(b)  all the 54 partially finished banknotes seized were counterfeits;

(c)  all the counterfeit banknotes and partially finished banknotes seized might have been printed by the HP inkjet printer;

(d)  the golden glittery substances in one of the counterfeit notes resembled the golden glittery substance of a genuine banknote. The substances of that counterfeit created a simulated dynamic colour-changing line-head pattern at the upper right corner on its front side. The golden glittery substances might have been originated from the gold-ink rollerball pen; and

(e)  all the counterfeit banknotes and the partially finished banknotes could have been made by the same technique.

13.  D1 remained silent under caution at the scene and in the subsequent interview.  Under caution at the scene, D2 stated that he went to visit his friend in the room, and he saw Jajbir printing banknotes.  He had no knowledge of it.  D2 further stated that he had no knowledge of the counterfeit banknotes and the printer in the subsequent interview.

The defendants’ background

14.  D1 is a Form 8 holder.  He is aged 29.  He was born in India in 1991. He completed Form 6 secondary school education in India.  He was unemployed prior to the arrest.  He is single and has a three-year-old son.  He had seven previous convictions including two of handling stolen goods, one of possession of dangerous drugs, one of resisting or obstructing a public or authorised officer, another one of obstructing a public officer and two of conspiracies to make counterfeit notes.

15.  D2 is also a Form 8 holder.  He is age 30.  He was born in India in 1991.  He completed his Form 5 secondary education in India.  He was unemployed prior to the arrest.  He is single and has no fixed abode.  He has four previous convictions including handling stolen goods, going equipped to steal, burglary and failing to surrender into custody.

Mitigation

D1

16.  Mr Beel for D1 submitted a written mitigation.  In relation to D1’s background, apart from the information provided by the prosecution, it is submitted that he entered Hong Kong legally in December 2012 and had made an application for asylum on political grounds which is still in process.  It is accepted that, in view of D1’s status, the court may, if considered appropriate, enhance his sentence in this case.  It is also accepted that the fact that D1 committed the present offences while on bail for another case, DCCC 23 and 156/2019, is an aggravating factor.

17.  It is accepted that counterfeiting currency is a serious offence, but it is submitted that the offence can range at one end from the extremely sophisticated in specialist printing to the other end involving a less-sophisticated operation.  It is submitted that this case concerns counterfeiting on an unsophisticated level operating on a small scale with little or no professionalism.  The duration of the offences as submitted was for a relatively short period of time. Although, there are two distinct offences, it was more of a continuation of similar and connected offences. 

18.  It is submitted that there is no international element in this case. The currency involved was only intended for the local market.

19.  The quality of the counterfeit notes as submitted is poor and the quantity and value of the counterfeit notes is low.  While D1 played an active role, he was not the mastermind.

20.  Counsel submitted two case authorities, namely, HKSAR v Wong Hoi Yat and Another [2006] 3 HKLRD 150 and HKSAR v Hu Wanxia [2009] 4 HKLRD 449.  I shall refer to them in detail later.  Mr Beel submitted that a starting point lower than that in those two cases would properly reflect the criminality in this case.

D2

21.  Ms Mohamed for D2 also submitted a written mitigation.  In relation to the background of D2, it is submitted that he came to Hong Kong in 2010 as a visitor and soon after made a torture claim.  In addition to the information provided by the prosecution, it is submitted that D2 has family in India consisting of his mother, age 55, a brother, age 25, and a younger sister, age 20. 

22.  D2’s father was hospitalised because of some blood problems and passed away of a heart attack last year.  It is submitted that D2 is a torture claimant and, therefore, did not have a regular income and had to rely on his family to send him money from India.  Some two weeks prior to his arrest in this case, he was told that his father was gravely ill.  He had to help pay for his father’s medical treatment and, therefore, in desperate need of money.  A friend suggested that he could make money by helping them print banknotes and he expect to get a few thousand dollars.

23.  The court is urged to consider the following points:-

(a)  D1 and D2 made 73 counterfeit banknotes of HK$500 and 54 sheets of paper containing images resembling HK$500;

(b)  the scale of the manufacturing is extremely small;

(c)  the value is not the highest of its range;

(d)  the defendants used a printer purchased from a store to print the notes and used gel pens and paper trimmer;

(e)  it is very likely if the notes were used it would be easy identifiable because the quality and the resemblance to the genuine notes is low;

(f)  the operation itself was highly amateurish; and

(g)  the role of D2 when the police arrived was that he was just standing next to the main door.

24.  Same as counsel for D1, counsel for D2 also relies on the same two cases of Wong Hoi Yat and Hu Wanxia.  It is accepted that D2 has previous convictions but nothing similar.  He is aware of the enhancement in sentence because of his Form 8 holder status.  The court is urged to take into account the totality principle when sentencing D2 on the two charges.

Sentence

25.  The maximum sentence for Charge 1, making counterfeit notes intending to pass or tender them as genuine, is 14 years’ imprisonment, whereas that for Charge 3, having custody or control of counterfeiting materials and implements, is the same.

26.  Before passing these sentences, I have viewed the counterfeits involved in this case in court.  I have to a certain extent agree to the defence submission that the quality of them is not good and the technique of making them is amateurish.  I also noted that they are of the same serial number. Nevertheless, I do not think they are in unusable state or condition.  If these counterfeit notes or a number of them are to be used together I agree that it is likely to be discovered, but it would be a different scenario if one or just a few of them is or are used together with some genuine notes.  As such, the risk or potential risk to the monetary market still exists.

27.  I have considered the case authorities submitted by the defence.  In Wong Hoi Yat, the Court of Appeal has set out certain sentencing principles. The sentencing factors include: the scale of the manufacturing operation; the quantity, value and degree of sophistication of the counterfeit copies; the nature and efficacy of paraphernalia, the length of time for which the offences had been carried on; and the roles and background of individual defendants (see paragraph 155H).

28.  The Court of Appeal also said that the overriding principle was that making counterfeit notes was an extremely serious offence that clearly called for 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 (see paragraph 155I to J).

29.  In that case where 3,450 counterfeit notes of $500 banknotes were involved, the Court of Appeal took the view that the appropriate starting point for D1 being mastermind in that case should be 7½ years, whereas the respective starting points for D2 and D3 in that case who were not the directing minds should be 5½ years and 6 years.

30.  In the other case relied upon by the defence, Hu Wanxia, where 601 pieces of counterfeit Renminbi $100 were involved, the Court of Appeal dismissed the appeal against sentence and took the view that the final total sentence of 32 months after plea (that is a starting point of 4 years)  could be regarded as lenient and not a day too long. 

31.  I have also considered a few other similar cases involving counterfeit notes for reference:-

(a)  In R v Chow Tin Wah [1991] 1 HKLR 68, the applicant is in possession of 15,763 pieces of $100 counterfeit notes. The Court of Appeal considered that a 6 years’ imprisonment was an appropriate starting point.

(b)  In a Chinese judgment, 香港特别行政區 訴 嚴守中 (Yan Shouzhong), CACC 296/2013, the applicant when entering Hong Kong from Macau attempted to exchange 100 pieces of counterfeit notes each of US$100. The Court of Appeal took the view that the face value of all the counterfeit notes was less than HK$80,000 and the proper starting point should be 4 years’ imprisonment.

(c)  In another Chinese case, 香港特别行政區 訴 李浩然 (Li Ho Yin), CACC 128/2013, the Court of Appeal considered the seriousness of counterfeiting offences, the lack of sentencing tariffs, the sentencing factors and the 5 to 6 years’ starting point for substantial cases of counterfeit notes (see paragraph 16 to 18 of the judgment). In that case where only 27 pieces of $100 banknotes of poor quality were involved, the Court of Appeal eventually reduced the final total sentence from 4 years to 2 years and 4 months after plea, in other words, with a starting point of 3½ years imprisonment.

32.  Having considered all the circumstances in this current case, including the scale of the operation, the quality and the quantity of the counterfeit notes involved, the equipment and the technique used, the length of time in which the offences were committed, as well as the role and background of the defendants, I take the view that the basic starting point should be one of 4 years’ imprisonment.

33.  Both D1 and D2 were arrested inside the same premises where the counterfeit notes and equipment were found.  D1 was in possession of the key to the flat.  D2 was the one who bought the printers, the papers, and the pens, for making the counterfeit notes a few days prior to the arrest.  I do not see any significant distinction in terms of criminality between the two defendants and consider that the same basic starting point should be applied for them.

34.  For D1, there are two aggravating factors.  First, he committed these offences whilst on bail for other offences.  Second, he is an asylum seeker and a Form 8 holder when committing these offences.  The second aggravating factor also applies to D2.

35.  For that another case that D1 was also involved, namely, DCCC 23 and 156/2019, I have to set out some relevant information here.  That was also a case involving counterfeit notes and other charges.  D1 together with other three defendants were either jointly or separately charged with a number of offences.

36.  Eventually, D1 pleaded guilty and was convicted on 18 October 2019 of one charge of obstructing public officer and two charges of conspiracy to make counterfeit notes.  The sentence was then adjourned for D1 and others to testify against a co-defendant.  D1 was eventually sentenced for that case on 14 December 2020.  It was confirmed by counsel that D1 was on bail during that intervening period and committed the current offences in January 2020.

37.  The correct sentencing approach is to regard the fact that an offence was committed whilst on bail as a factor seriously aggravating that offence and to reflect that by enhancing appropriately the starting point for sentence. See, for instance, the Court of Appeal’s decision in HKSAR v Leung Ting Fung and Another, CACC 109/2014, at paragraph 34 of the judgment.  In that burglary case, the Court of Appeal enhanced the starting point by 6 months for that particular aggravating feature.

38.  No doubt it is more serious here in this case when D1 committed not only other offences but also similar offences of counterfeit notes whilst he was on bail.  That shows his total disregard of the law.  I am, therefore, of the view that the appropriate enhancement for D1 for that particular aggravating factor in this case should be one of 9 months’ imprisonment. 

39.  Now I move on to deal with the fact that both D1 and D2 were Form 8 holders at the time of commission of the offences.  It was as early as in 2013 when the Court of Appeal observed in HKSAR v Sendagdorj Altankhuyag and Another, [2014] 1 HKC 206, that the commission of an offence by a foreign national who was the holder of a Form 8 recognisance could constitute an aggravating factor and could have the sentence enhanced.  It is because that a foreign defendant when committing a crime had abused the hospitality and liberty offered by the Hong Kong government and his crime has affected Hong Kong’s reputation for order and security.

40.  Since that judgment, the Court of Appeal had on various occasions enhanced or endorsed the enhancement by sentencing judges of sentences of defendants who were Form 8 holders.  The enhancement was usually in the region of a few months or up to a year.  For instance, in a more recent case, HKSAR v Don Amarasinghalage Don Chandra Janaka, CACC 377/2016, reasons for judgment given on 25 October 2017 where the appellant was convicted of trafficking in about 25 grammes of ‘Ice’, the Court of Appeal when sentencing the appellant afresh enhanced the starting point by 9 months to reflect the appellant’s status as a non-refoulement claimant at the time of committing the trafficking offence.

41.  Also, and more specifically, in HKSAR v Shah Syed Arif, [2016] 4 HKLRD 664, the Court of Appeal at paragraphs 34 and 35 of the judgment observed that it was neither prudent nor possible to issue sentencing guidelines for such cases.  Such enhancement was best left to the discretion of the sentencing judge or magistrate.  But, obviously, the greater the impact of the particular offence on the community at large and on Hong Kong’s reputation for order and security, the greater the enhancement.

42.  In that case the applicant was convicted of trafficking in a substantial amount of cocaine and for that primary offence the sentencing judge adopted a starting point of 8 years and 2 months, but the enhancement to reflect the applicant’s Form 8 status for 1 year and 10 months was nevertheless found to be too severe by the Court of Appeal and the enhancement was eventually reduced to one of 1 year’s imprisonment after appeal. 

43.  No doubt the counterfeit notes offences here, just like dangerous drug offences in other similar cases, had a great impact on the community at large and on Hong Kong’s reputation for order and security.  I take the view that the appropriate enhancement in this regard should be one of 6 months’ imprisonment.

44.  I agree to the defence submission that the two offences here are a continuation of similar and connected offences.  They could be viewed as part and parcel of the same case.  I shall apply the totality principle and order concurrent sentences.

45.  For the sentences of D1 for each of Charges 1 and 3, I adopt the basic starting point of 4 years, enhance it by 9 months to reflect the fact that he committed these offences whilst on bail and another 6 months for his Form 8 holder status and arrive at a starting point of 5 years and 3 months, or 63 months.  I give him the full one-third discount for his guilty pleas. For Charges 1 and 3, I sentence D1 to 42 months’ imprisonment each, both sentences to run concurrently, making a total of 42 months’ imprisonment.

46.  For the sentences of D2 for each of Charges 1 and 3, I also adopt a basic starting point of 4 years, again, enhance it by 6 months to reflect his Form 8 holder status, and come to a starting point of 4½ years.  I also give him the full one-third discount for his guilty pleas.  For Charges 1 and 3, I sentence D2 to 36 months’ imprisonment each, both sentences to run concurrently, making a total of 36 months’ imprisonment.