HKSAR v. Ho Chi Hang

DCCC 437/2020

[2021] HKDC 66

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 437 OF 2020

____________

____________

REASONS FOR SENTENCE

1.D2 pleads guilty to one charge of making counterfeit notes, contrary to section 98(1) of the Crimes Ordinance[1] (charge 2); one charge of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance (charge 3); one charge of possession of counterfeiting materials and implements with intent, contrary to section 101(1) of the Crimes Ordinance (charge 4) and five charges of passing a counterfeit note(s), contrary to section 99(1)(a) of the Crimes Ordinance (charges 5-9).

2.Full particulars of the offences are set out in the amended summary of facts admitted by D2 today.  In summary on five occasions, between 27 May 2019 and 13 February 2020, D2 successfully passed off counterfeit $500 and $1000 notes in foot massage shops, a Circle K convenience shop and an ice cream shop  (charges 5-9)[2].

3.D2 was arrested on 15 February 2020 together with his brother, Ho Chi Tat[3].  D2 was found in possession of six counterfeit HSBC banknotes, one $1,000 banknote and five $500 banknotes.  D2’s brother was found in possession of five counterfeit HSBC banknotes, two $1,000 banknotes, two $500 banknotes and one $100 banknote. 

4.In a house search the police found five counterfeit Bank of China banknotes, four $500 banknotes and one $100 banknote; one counterfeit $500 HSBC banknote and one counterfeit $100 Standard Chartered Bank banknote (charge 2).

5.The police also found in the house search five sheets of A4-size paper and nine sheets of paper each containing two images resembling $500 currency notes (charge 3) and one cutter, three pairs of scissors, white paper and two printers (charge 4).

6.I have had the opportunity of looking at the counterfeit banknotes in court.  All the counterfeit banknotes were sent for fingerprint examination and have been subjected to chemical analysis resulting in the colour of the counterfeit banknotes changing.  A bundle of photographs has also been submitted to court showing the counterfeit banknotes.

7.Under caution and in a video recorded interview D2 admitted, inter alia, that the counterfeit banknotes found on him and his brother on arrest all belonged to him; he made all the counterfeit banknotes found on him, his brother and in his home by scanning and printing the notes at home and admitted passing the counterfeit banknotes subject of charges 5-9.

Mitigation

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Lai, including that D2 aged 32, is married and works as a technician[4]. 

9.I take into account that D2 has no similar previous convictions and apart from minor charges of gambling has not been before the court since 2007.

10.I have read the mitigation letter written by D2 in which he explains he committed the offences due to financial difficulties.  D2 expresses his remorse and offers to make restitution[5].

11.I have also read the letters written by Deacon Peter Wong, who asks for a lenient sentence and D2’s previous employer, who says he would have no hesitation in employing D2 again after he serves his time in prison.

12.I do not agree however with D2’s previous employer that the D2 acted out of momentary greed.  The offences were committed over a period of ten months and involved not only the passing off of counterfeit banknotes but the making of counterfeit banknotes as well.

13.Mr Lai submits there is a lack of aggravating factors and that due to the quality of the counterfeit banknotes it is highly unlikely they will stay in circulation without being noticed[6]. 

14.Whilst the counterfeit banknotes are not of high quality the fact D2 was able to successfully pass off counterfeit banknotes on five occasions, the last time only two days before he was arrested, shows that the counterfeit banknotes were of sufficient quality to be successfully passed off as genuine.

15.Mr Lai refers to four cases for the consideration of the court[7].  Apart from HKSAR v Wong Hoi Yat & others, which is a far more serious case, the cases referred to by Mr Lai do not involve the making of counterfeit banknotes.

16.All the offences carry a maximum sentence of 14 years’ imprisonment indicating the seriousness of the offences.  Deterrent sentences are required to reflect that the offences affect the integrity of the currency circulated in society[8].

17.In HKSAR v Wong Hoi Yat & others the Court of Appeal identified relevant factors in sentencing, including the scale of the manufacturing operation; the quantity, value and degree of sophistication of the counterfeit notes; the nature and efficacy of the paraphernalia; the length of time for which the offences had been carried on and the role and background of the defendant[9].

18.Taking into account the quantity and quality of the counterfeit banknotes found on arrest and in D2’s home; D2 made the counterfeit banknotes which have a total face value of $23,300, I am satisfied a starting point of 3 years and 6 months’ imprisonment is appropriate for each of charges 2, 3 and 4.  Giving D2 full credit for his pleas of guilty reduces the sentence on each charge to 2 years and 4 months’ imprisonment.

19.For passing a counterfeit banknote I am satisfied a starting point of 3 years’ imprisonment is appropriate for each of charges 5 - 9.  Giving D2 full credit for his pleas of guilty reduces the sentence on each charge to 2 years’ imprisonment.

Totality

20.I am satisfied that the total sentence must reflect that D2 passed counterfeit banknotes on five occasions in May 2019, June 2019 and February 2020 and that when D2 was arrested he was found in possession of more counterfeit banknotes and counterfeiting materials from which more counterfeit notes could have been made had D2 not been arrested. 

21.I am satisfied a total sentence of 2 years and 10 months’ imprisonment properly reflects D2’s criminality on the eight charges and takes into account D2’s personal circumstances and the seriousness of the offences[10]. 

Restitution

22.D2 agrees to pay full restitution to the victims of each of charges 5-9[11].  Mr Chan however informs the court that the owner of the foot massage shop subject of charge 6 has closed and the owner cannot be located. 

23.D2’s family have paid the sum of $3,500 into court today to compensate the victims of charges 5, 7, 8 and 9.  In recognition I reduce the total sentence to be served by D2 by 1 month to 2 years and 9 months’ imprisonment. 

Sentence

24.D2 is convicted and sentenced as follows:

Charges 2, 3 & 4 – 2 years and 4 months’ imprisonment concurrent on each charge;

Charges 5-9 – 2 years’ imprisonment concurrent on each charge with 5 months consecutive and 19 months concurrent to charges 2, 3 & 4.

The total sentence to be served by D2 is 2 years and 9 months’ imprisonment.

D2 is ordered to pay restitution of $1,000 to 水上明珠足浴店 (charge 5); $1,000 to Circle K Convenience Store (charge 7); $500 to 手作之店 (charge 8) and $1,000 to 滿之足 (charge 9) from the monies paid into court.

[1]　　Cap 200.

[2]　　See §§8-25 of the amended summary of facts.

[3]　　Ho Chi Tat, D1, is charged with one count of having custody or control of five counterfeit currency notes, charge 1.  Upon D2 pleading guilty to charges 2-9 the prosecution offered no evidence on charge 1 against D1. 

[4]　　See §3 of the defence skeleton submission for mitigation.

[5]　　Also see §4 of the defence skeleton submission for mitigation.

[6]　　See §5 of the defence skeleton submission for mitigation.

[7]　　HKSAR v Wong Hoi Yat & others [2006] 3 HKLRD 150; HKSAR v Leung Wai Han CACC 102/2002 and HKSAR v Lam Wai Ming CACC 44/2004. Mr Lai also referred to CACC 392/2005 which is a judgment in Chinese only.  No agreed translation was submitted as required by the Practice Direction.  After further consideration Mr Lai said he would not be relying on this judgment and said he did not require an adjournment to translate the judgment.

[8]　　See for example HKSAR v Li Tsz Chung CACC 312/2011

[9]　　[2006] 3 HKLRD 150.  English headnote only.

[10]　　See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.

[11]　　See §6(5) of the defence skeleton submission for mitigation.