HKSAR v. Singh Gursewak and Another

DCCC 641/2020

[2021] HKDC 465

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 641 OF 2020

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Reasons for Sentence

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1.The 1st defendant has pleaded guilty to three charges: Charges 1 and 2 which are two charges of having custody or control of counterfeit currency notes, contrary to section 100(1) of Cap 200, and one charge of conspiracy to make counterfeit notes, contrary to section 98(2) of the same ordinance.

2.The 2nd defendant faces Charges 3 through to 7: 3 through to 6 of passing or tendering counterfeit notes, contrary to section 99(1), Cap 200.  Charge 7 is the conspiracy with the 1st defendant to make counterfeit notes. 

3.On 4 March 2020, 1st defendant was intercepted by police in the New Territories for a stop and search.  In his possession, a total of $132,100 worth of counterfeit banknotes were found.  That could be seen in Charge 1.  Later at his home, more counterfeit banknotes were found with a total face value of HK$162,000.  The grand total value of the counterfeit notes found from the defendant on 4 March is HK$294,100.

4.Chronologically, for Charges 3 through to 6 faced by the 2nd defendant, in respect of Charge 3, involves something that happened on 8 November 2019.  The 2nd defendant bought an iPhone from the third prosecution witness for $8,800.  Of the banknotes used to make the purchase, 8,000 of those banknotes were counterfeit.  The third prosecution witness in fact easily discovered the forgeries and the 2nd defendant’s fingerprints were found on the counterfeit banknotes. 

5.The 4th charge is that the 2nd defendant on 13 December 2019 driven by a GoGoVan driver from Tuen Mun to Lam Tin, the 2nd defendant made payment for that to the driver with a $500 counterfeit note. 

6.During this trip, in respect of Charge 5, the 2nd defendant helped a person called Billy trade a Chanel handbag.  The 2nd defendant said he had been given around 22,000 counterfeit banknotes by Billy.  These notes were passed on to the seller and found to be counterfeit.  The transaction was unsuccessful in fact. 

7.In respect of Charge 6, the 2nd defendant contacted a person who helped the same Billy to contact the seller of a Nintendo game console.  2,700-odd counterfeit notes were used to make that transaction.  The 2nd defendant was to receive $1,500 as a reward.  In fact, Charges 5 and 6, the details were discovered as a result of admissions made by the 2nd defendant in his video-recorded interview. 

8.The final charge, Charge 7, faced by both the 1st and 2nd defendants relates to various WhatsApp messages that passed between their mobile phones between 28 February 2020 and 4 March 2020. There were a number of messages which showed discussions about alterations and enhancements to be made to HK$500 counterfeit notes to give them the appearance of being more genuine. 

9.The backgrounds of the defendants can be seen from their antecedents.  The 1st defendant, now aged 37, has a background history of construction work.  He has a number of previous convictions, none similar.  There are convictions related to fraud for which he was sentenced in 2015 to 22 months’ imprisonment and also theft at the same time.  The defendant also has some convictions for possession of dangerous drugs and has been sent to Drug Addiction Treatment Centre along with a sentence of imprisonment. 

10.The 2nd defendant in his antecedents statement recorded having no criminal record.  The criminal record shows that he was convicted on 18 August 2020 in respect of a number of offences, a number of driving offences and an assault at that time for which he was sentenced to Drug Addiction Treatment Centre.  I am told that he has completed that sentence at the Drug Addiction Treatment Centre. 

11.Further mitigation offered on behalf of the defendants.  In respect of the 1st defendant, it is said that in fact the Hong Kong dollar currency which we are dealing with in these offences was purchased from Taobao on the internet and the 1st defendant formed the view that it could be passed as genuine currency in Hong Kong despite what I will refer to as obvious problems with doing that, given the nature of the notes themselves.  It is submitted on behalf of the 1st defendant that the 1st and 2nd charges he faces are related charges to be considered in that way. 

12.As far as the 2nd defendant is concerned, he, as I said from his criminal record, has only recently became involved in criminal activity.  He has been co-operative with the police.  He is prepared to pay compensation of $8,500 to the victims in Charges 3 and 4.  This defendant wishes to face his prison sentence to start a new life. 

13.Turning to the approach to sentencing, it is clear there is no actual tariff for these offences.  They are considered to be serious offences.  The maintenance of the currency is seen to be a matter of great importance and any attempts to counterfeit or in any way interfere with the passing of currency notes is seen to be a serious matter attended by substantial periods of imprisonment and certainly an immediate sentence of imprisonment. 

14.I refer to the case of HKSAR v Wong Hoi Yat and Others [2006] 3 HKLRD 150, a case involving making counterfeit notes and possession of counterfeit notes.  The Court of Appeal there identified relevant factors in sentencing.  Those factors will include the scale of the manufacturing operations, the quality value and degree of sophistication of the counterfeit notes, the nature and efficiency of the paraphernalia involved, the length of time for which the offence has been carried on and the roles and the background of the defendants concerned. 

15.I have been referred to some offences involving similar sentences, for example, HKSAR v Chen Zhu Shan, CACC 392/2005 involving a case where attempts were made to deposit counterfeit notes in bank accounts, where a total value of counterfeit notes of HK$64,000 was involved in the case and a starting point of 3 years and 6 months’ imprisonment was adopted as a starting point in that case.  The case of HKSAR v Yan Shouzhong, CACC 296/2013 with counterfeit notes tendered at a face value of some HK$80,000, the Court of Appeal has said that a 4-year starting point should be appropriate.  It would appear from this the sentences are at large and depend on the factors that were set out in the case of Wong Hoi Yat. 

16.Some factors for consideration in these cases are that the quality of the notes in this case are poor in that it would be very difficult to pass these notes as genuine.  Large on the notes are inscribed on their face as “training notes”.  The serial numbers of the notes are the same.  They are of low quality, and they appear to have been discovered by the victims.  It would appear that the discovery of their counterfeit nature would be almost inevitable.  That is a significant factor in determining the overall seriousness of the offences. 

17.The enterprise itself appears to be of a small scale and rather rudimentary.  Although alterations to the banknotes were discussed - we could see in the WhatsApp messages that form the subject of Charge 7 - although these alterations were discussed, neither defendant was capable or able to in fact carry out those methods for improvements of the notes. 

18.Taking these factors into consideration, I have determined that the sentences should be as follows for the defendants on the charges they face.  In respect of the first two charges, involves on the face of the banknotes themselves - a large denomination of some HK$294,000 which would denote a lengthy sentence of imprisonment.  I do take into account when determining the appropriate starting point and length of sentence the nature of those banknotes, which would in effect provide some sort of cap on the sentence. 

19.I turn now, in respect of Charge 1, to take a starting point at 42 months’ imprisonment and reduce those to 28 months in respect of the defendant’s plea of guilty. 

20.In respect of the other charges faced by the defendants, that is Charges 3, 4, 5, 6, and 7, I have decided to take a starting point for sentence on each of those charges at 30 months’ imprisonment and reduce that to 20 months’ imprisonment for the defendants’ pleas of guilty. 

21.So in respect of the 1st defendant on the 1st charge, a sentence of 28 months’ imprisonment; on the 2nd charge, a sentence of 28 months’ imprisonment; on the 7th charge, a sentence of 20 months’ imprisonment.  For the 2nd defendant on all charges faced, 3 through to 7, a sentence of 20 months’ imprisonment. 

22.And thus to determine the overall sentence for the defendants, in respect of the 1st defendant, I have determined that an overall sentence of 32 months’ imprisonment will be appropriate and achieve that as follows:  I will order the charges on the 1st and 2nd charges to be served concurrently to each other, and 4 months of the 7th charge to be served consecutively to Charges 1 and 2, giving an overall total sentence of 32 months’ imprisonment for the 1st defendant. 

23.As far as the 2nd defendant is concerned, I have determined that in fact an overall sentence of 25 months’ imprisonment will be appropriate and I am going to achieve that as follows:  I am going to order sentences on 3 through to 6 to be served concurrently.  On the 7th charge, I would have ordered 6 months of that sentence to be served consecutively, leading to a sentence of 26 months’ imprisonment.  But as the defendant will be making a compensation order, I shall reduce that to 25 months’ imprisonment.  I order 5 months of Charge 7 to be served consecutively to Charges 3 through to 6.  That is to take into account the compensation of $8,500 which will be ordered to be paid by the defendant in these proceedings.

24.The overall sentence of imprisonment then for the 1st defendant will be 32 months’ imprisonment, for the 2nd defendant 25 months’ imprisonment, plus a compensation order of $8,000 to the victim of Charge 3 and $500 to the victim of Charge 4.