HKSAR v. Malik Mohammad Tariq (also known as Mohammad Tariq Malik)

DCCC 276/2020

[2021] HKDC 1098

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 276 OF 2020

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REASONS FOR SENTENCE

1.The defendant, a Form 8 recognisance holder from Pakistan, stands convicted after trial of one charge of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance[1].

2.The defendant was convicted on 3 August 2021.  Sentence was adjourned for the preparation of a medical report as to the defendant’s disability and for a report from the Correctional Services Department on the medical facilities available in prison for disabled prisoners[2].

3.Full particulars of the offence are set out in my reasons for verdict handed down on 3 August 2021.  In summary on 23 September 2019 the police executed a search warrant at the defendant’s home and found under the pillow of the defendant’s bed a white plastic bag containing 521 counterfeit $1,000 banknotes.

Mitigation

4.In passing sentence, I have carefully considered the oral and written submissions of Mr Hemmings, the medical reports and the antecedent statement. 

5.The defendant who is 49 first came to Hong Kong in 2001.  The defendant is married with one son.  The defendant’s wife lives in Pakistan whereas his son lives in Hong Kong.

6.The defendant was involved in a traffic accident in 2012 when he fractured his right leg and injured his spine.  As a result of his injuries the defendant is paralyzed and has been wheelchair bound since the accident. 

7.I take into account that the defendant has no similar previous convictions.

Sentence

8.There are no tariff sentencing guidelines[3]. The maximum sentence is 14 years’ imprisonment indicating the seriousness of the offence. Deterrent sentences are required to reflect that the offence affects the integrity of the currency circulated in society[4].

9.In HKSAR v Wong Hoi Yat & others the Court of Appeal identified relevant factors in sentencing, including the quantity, value and degree of sophistication of the counterfeit notes and the background of individual defendants[5]. 

10.I take into account the submission of Mr Hemmings that the counterfeit notes were of poor quality, the degree of sophistication was minimal and that there is no evidence that the defendant attempted to utter the counterfeit notes or that similar notes had been passed.

11.In R v Chow Tin Wah the appellant pleaded guilty to possession of 15,763 counterfeit $100 banknotes and was sentenced to 3 years and 6 months’ imprisonment.  In dismissing the appeal against sentence the court referred to cases which indicated that where the face value of forged notes was substantial the proper starting point was 6 years’ imprisonment[6].

12.In HKSAR v Wong Hoi Yat & others 3,450 counterfeit HK$500 banknotes were found when premises where the defendants were staying was raided by the police.  The defendants pleaded guilty to making counterfeit notes, having custody and control of counterfeit notes and having custody and control of counterfeiting material. 

13.The Court of Appeal held that a starting point of 7 years and 6 months’ imprisonment was appropriate for D1 who was the directing mind behind the operation and starting points of between 5 years and 6 months and 6 years’ imprisonment for D2 and D3 who were not the directing minds of the operation. 

14.In HKSAR v Hu Wanxia the Court of Appeal in dismissing an appeal against a sentence of 2 years and 8 months’ imprisonment (starting point 4 years) for having custody and control of 609 counterfeit RMB100 banknotes (equivalent to about HK$70,000) said that the sentence could be regarded as lenient[7]. 

15.Taking into account the quantity and quality of the counterfeit banknotes which have a total face value of $521,000, I am satisfied a sentence of 4 years and 6 months’ imprisonment is appropriate. 

Commission of offences by refugees or torture claimants

16.The defendant is a Form 8 recognizance holder.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security[8]. 

17.I am satisfied possession of counterfeit currency notes affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.   By reason of the defendant’s Form 8 status I enhance the sentence by 3 months to 4 years and 9 months’ imprisonment. 

Delay

18.Mr Hemmings submits that account should be taken of the delay in bringing the case to trial which was largely due to the pandemic and not attributable to the defendant.

19.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[9].

20.Having looked at the court record, the time taken to bring the case to trial appears largely due to an adjournment of the trial by the court because of the pandemic.  In summary the defendant first appeared in court on 14 May 2020.  The case was transferred to the District Court the same day.  The defendant first appeared in the District Court on 28 May 2020 when the case was adjourned to 8 July 2020 for the defendant to take legal advice.    

21.On 8 July 2020 the defendant indicated his plea of not guilty to the charge and a trial date was fixed to commence on 7 December 2020.  The trial dates were however vacated by the court and re-fixed for July 2021.  The trial commenced before me on 5 July 2021.

22.I am satisfied some credit should be given in sentence for the time taken to bring the case to trial.  In the circumstances I reduce the sentence by 1 month to 4 years and 8 months’ imprisonment. 

Medical condition

23.Mr Hemmings submits that the defendant will suffer extra hardship in prison by reason of his disability.  As noted already sentence was adjourned for a medical report on the defendant and a report on the medical facilities available in prison for disabled prisoners.

24.The reports reveal that the defendant is being treated accordingly and that there are medical facilities available for disabled persons.   Mr Hemmings informs the court that the defendant takes no issue with the content of the medical reports and is happy that the facilities are adequate. 

25.In HKSAR v Cheng Ho Chow the Court of Appeal reviewed a number of authorities about the reduction of sentence on humanitarian grounds[10].  The Court of Appeal drew the following conclusions from that review:

(1) Ill health generally will not operate as a mitigating factor. Medical facilities available in the prisons in Hong Kong are adequate to deal with prisoners’ general physical complaints.

(2) In rare circumstances, very serious injuries, even where suffered in the course of criminal activity, can be (but not must be) taken into account to reduce the sentence.

(3) Reduction of sentence under these circumstances can be done as an act of mercy or on the basis that the hardship which the offender in question will suffer when he is in prison will, because of his disabilities or ill health, be more than those suffered by a healthy person.

(4) Adjustment made to a sentence under these circumstances must be within proper limits, because of the necessity of maintaining proper standards of punishment.

(5) In order to decide whether a sentence should be reduced for this reason, all the circumstances of the case should be considered.

(6) The court must keep a proper balance between public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest no doubt must prevail. But even when the offence is not of extreme gravity, that is not an indication that due weight does not need to be given to public interest.

26.In HKSAR v Cheng Ho Chow the appellant pleaded guilty to one count of dangerous driving causing death in the course of which the appellant was also severely injured.  Medical reports showed the appellant to be suffering from tetraplegia and required special treatment for spinal injuries.

27.In addition to medical reports the court requested a further report from the Correctional Services Department on the medical facilities available in the prisons.  The court noted that if specialist consultation was required the prisoner would either be treated by visiting specialists from the Hospital Authority or sent to outside clinics for treatment[11]. 

28.The court also noted that all along the Correctional Services Department have been taking care of disabled prisoners, for example, prisoners suffering from quadriplegia, paraplegia or suffering from a paralytic stroke[12]. 

29.I note that since the defendant became wheelchair bound in 2012 he served a period of imprisonment in 2014 for illegally remaining in Hong Kong and breach of a deportation order.  Mr Hemmings informs the court that the defendant last came to Hong Kong in 2014 together with his son.

30.I have no doubt at all that the Correctional Services Department will make suitable arrangements regarding the needs of the defendant.   Nevertheless, I accept the disability of the defendant will, as Mr Hemmings submits, make imprisonment more difficult.  In the circumstances I reduce the sentence by 8 months to 4 years’ imprisonment. 

31.The defendant is sentenced to 4 years’ imprisonment.