HKSAR v. Van Leuven Alan Edward and Another

DCCC 735/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 735 OF 2015

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REASONS FOR SENTENCE – for D1 only

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Introduction

1.On 2 February 2016, the first defendant entered a plea of guilty to the first, fourth and sixth charges, and agreed to the prosecution’s application to have the second, third and fifth charges left in the court file.  The second defendant who was implicated in the second and third charges only agreed likewise to have those charges left in the court file.  In consequence, upon the first defendant’s conviction of the first, fourth and sixth charges, the remainder of the charges on the Charge Sheet was ordered to be left in the court file marked not to be proceeded with without the leave of the court or that of the Court of Appeal, whereupon the second defendant was released from these proceedings. 

2.The three offences of which the first defendant stands convicted are as follows: conspiracy to make counterfeit notes with intent, contrary to sections 98(1), 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 1); possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 4); and possessing a false instrument, contrary to section 75(2) of the Crimes Ordinance, Cap 200 (Charge 6).

Facts

3.In the early hours of 18 April 2015, a team of police officers arrived at Room 1703, Flat C1, 17^th floor, Chungking Mansions, Tsim Sha Tsui.  They demanded to be allowed entry.  When they were ignored, they broke into the unit and found the first defendant and a female person inside. 

4.The police conducted a search there.  They found, among other things, (i) a laptop computer displaying on its screen an image of three HK$500 banknotes and a “prepared to print” window, (ii) a printer, which was connected to the laptop computer, (iii) 148 sheets of A4 paper with HK$500 banknotes colour-printed on them, 120 of which were double-sided, (iv) a pile of blank A4 paper, (v) a cutting mat, (vi) a banknote counting machine, (vii) a plastic documents holder containing three sheets of A4 paper with HK$500 banknotes colour-printed on them,  (viii) a notebook containing notes and images on how to make counterfeit banknotes, (ix) a tinfoil packet containing what was later found to be 0.79 gramme of pure methamphetamine hydrochloride, commonly known as “ice”, (x) two “ice” flasks containing what was subsequently found to 47ml of a liquid containing traces of “ice”, (xi) a glass straw, (xii) a lighter, and (xiii) a tin box containing a roll of tinfoil. In a rubbish bin outside Flat C1 was recovered one sheet of A4 paper with three HK$500 banknotes colour-printed on it.  In total, the police seized 450 colour-printed banknotes in HK$500 denomination; they discovered six different serial numbers had been used in different combination on the fake banknotes. (Charges 1 and 4)

5.The first defendant himself was searched, and in his possession were found (i) a Form 8 Recognizance in the his own name, but the photograph had been removed, and (ii) another Form 8 Recognizance in the name of a Canadian male person Elias Majd, on which was affixed the first defendant’s photograph. (Charge 6)   Under caution, the first defendant admitted, in essence, the following.  His friend Altaf Kan had allowed him to stay rent-free in the unit since 10^th or 11^th April 2015.  Secondly, on Wednesday, ie., 15 April 2015, Altaf arrived with two Chinese male persons and a Pakistani male called Changaz Khan, Rocky.  One of the Chinese males asked the first defendant to make counterfeit HK$500 banknotes, offering to pay him several thousand dollars.  The first defendant agreed to do so and was provided with $1,000 with which to buy (among other things) some A4 paper, a colour ink cartridge and a cutting mat.  Subsequently, he received a telephone call from a female person Vivian urging him to complete the printing of 50,000 counterfeit banknotes in HK$500 denomination by Friday.   In addition, he admitted to the police that the “ice” and the two “ice” flasks were gifts from the two Chinese males and that he had used one of the two flasks for “ice” consumption. (Charges 1 and 4)

Mitigation

6.The first defendant was born in the United States in April 1971 and is about to turn 45 at the time of his sentencing hearing. He has received education to the tertiary level.  In 1998, he married a Hong Kong resident and came to Hong Kong on the strength of a dependant visa.  Upon arrival, he was issued with an HKID card, which was however revoked by the immigration authorities in 2010.  In August that year, he lodged a claim for determination of his status as a torture victim and was issued with a Form 8 Recognizance. The first defendant is not unknown to the law; he has prior to his current convictions three criminal records involving a total of 16 offences, ranging from criminal damage to possession of arms and ammunition without a licence. On 23 April 2013, a conviction record of (among various deception charges) possession of false instruments was entered against him. 

7.Mr John McNamara appearing for the first defendant submits, by way of additional background information, that the first defendant and his fiancée have a baby daughter and that their relationship remains continuing.  In his plea in mitigation, Mr McNamara explains that the first defendant committed the subject offences for financial gains, not being able to work in Hong Kong due to his immigration status.  He stresses, for the court’s consideration, the following features of the present case. 

8.In respect of the first charge, namely, conspiracy to make counterfeit notes with intent, Mr McNamara submits that the first defendant has acted in desperation when he accepted a proposed reward of a mere several thousand dollars for getting himself involved in so serious an offence, an offence which has lasted for several days only, but of which the first defendant was not the mastermind.  Mr McNamara points out that the first defendant’s printing operation has barely started when the police raided the premises and arrested him; by that time, only a limited amount of completed forged notes of an inferior quality has been made.  Mr McNamara makes reference to HKSAR v Wong Hoi-yat and ors[1], a case in which a starting point of five and a half years’ imprisonment was chosen by the Court of Appeal for the second defendant in that case (who was found not to be the directing mind) for making 3,450 pieces of counterfeit HK$500 banknotes.  In the instant case, in respect of the conspiracy offence, Mr McNamara seeks a starting point of significantly lower than five and a half years’ imprisonment for his client, on the basis that his client has made – in terms of quantity – far less fake notes than the second defendant in HKSAR v Wong Hoi-yat and ors[2].

9.In relation to the fourth charge, namely possession of a dangerous drug, Mr McNamara acknowledges that a bona fide drug abuser would normally be sentenced after trial to a term of imprisonment between 12 and 18 months, the major consideration being the quantity of the drug involved (see HKSAR v Mok Cho-tik[3]). However, Mr McNamara puts forward, for the court’s consideration, the case of HKSAR v Chan Sai-hap[4]. In that case, a magistrate adopted, for a fresh offender, a starting point of six months’ imprisonment for possessing 0.72 gramme of “ice”, who nevertheless committed a second offence of possession of 2.83 grammes of “ice” while on bail, for which offence the magistrate adopted a starting point of 12 months’ imprisonment.  Mr McNamara argues that in his client’s case, there being no latent risks to speak of, the proper sentence for the fourth charge – upon plea – should be four months’ imprisonment.

10.As to the sixth charge, a charge of possession of a false instrument, Mr McNamara emphasizes that the first defendant has had the forged Form 8 Recognizance for some time and has forgotten its existence until the police found it.  He argues that the forged document has no use to the first defendant whatsoever who has forgotten he had it.  He asks the court to adopt as low a starting point for this offence as possible.

Discussion

11.Offences relating to counterfeit banknotes are always extremely serious.  This kind of offences disturbs the normal working of our financial system which is of crucial importance to Hong Kong, and it can damage the trustworthiness of our currency.  A heavy sentence with significant deterrence is invariably called for.  In HKSAR v Wong Hoi-yat and ors[5], the Court of Appeal stipulated a normal starting point of five to six years’ imprisonment for a manufacturing operation that “was not too large.”  The first defendant in this case has been prosecuted with the offence of conspiracy, the scope of which involves his agreeing to complete 50,000 counterfeit banknotes within a short time.  Although he was not the mastermind in the crime, he has taken active, crucial steps in the implementation of the criminal agreement, including the procurement of the manufacturing paraphernalia.  True it is that the first defendant in the instant case has successfully generated some 450 counterfeit notes, which is well below the amount of fake notes with which the Court of Appeal was concerned in HKSAR v Wong Hoi-yat and ors[6], a visual inspection of the finished notes shows, however, that they do bear a striking similarity to the genuine piece and have therefore a clear potential of being successfully uttered.  Had he not been arrested at the time he was, the first defendant would most certainly have continued generating the fake banknotes as per the criminal agreement.  One cannot say, therefore, that the operation concerned, unsophisticated and rudimentary as it might well have been, is ineffective in achieving the criminal purpose for which it was devised.       

12.With respect to the offence of possession of “ice”, the court notes that the first defendant is not a person of good character; he has in the past been convicted of some serious offences for which he has been sentenced to prison.  His case is clearly distinguishable from HKSAR v Chan Sai-hap[7] which concerned a person of previous good character, and it falls squarely within the lower end of the sentencing bracket articulated in HKSAR v Mok Cho-tik[8].

13.The court accepts that it is irrelevant whether the first defendant has had the intention to use the forged Form 8 Recognizance: he has been charged with simple possession of a false instrument.  That said, a Form 8 Recognizance is an important instrument capable of being used as an identity document, and it affords proof of the holder’s immigration status.

14.In all the circumstances, in view of the culpability of offences, a global starting point for the three charges together should be one of five years and six months’ imprisonment.  Having regard to all matters in mitigation advanced on the first defendant’s behalf, the court is of the view that a reduction in sentence of around forty-five percent should be granted; the final sentence for the three charges should be three years’ imprisonment.

15.To achieve that final sentence, the appropriate starting point for the first charge is fixed at four years and nine months’ imprisonment.  After reduction, the first defendant is sentenced to 31 months’ imprisonment for that charge.  The starting point for each of the fourth and the sixth charges is 11 months’ imprisonment, which is reduced to six months each.  Considering the totality principle, it is ordered that two months of the sentence in respect of the fourth charge are to be served consecutively to the 31-month sentence for the first charge, and that three months of the sentence for the sixth charge are to be served consecutively to the 33-month sentence for the first and the fourth charges, thus resulting in a total sentence of three years’ imprisonment. 

Conclusion

16.For the offences in the first, fourth and sixth charges of which he stands convicted, the first defendant is sentenced to a term of imprisonment of three years.