HKSAR v. Mohammad Faeem Durez

DCCC 579/2021

[2021] HKDC 1081

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 579 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 charges: (1)  Having custody or control of counterfeit currency notes, contrary to section 100(1)  of the Crimes Ordinance, Cap 200; and (2)  Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

ADMITTED FACTS

2.On 12 December 2020 at around 11:30 am, police officers spotted the defendant at Kowloon Park, near Exit A, MTR Tsim Sha Tsui Station, Tsim Sha Tsui, Kowloon, Hong Kong.  The defendant was intercepted for enquiry.

3.Upon search, 54 pieces of $100 Hong Kong currency banknotes with the same serial number (Exhibit 1)  [see Photos A (1-3)] were found in the left inner pocket of the defendant’s jacket.  The defendant stated in Punti that he had picked them up earlier on.  He was arrested.

4.Upon a further search on the same day, at the Search Room in Tsim Sha Tsui Police Station, No 213 Nathan Road, Tsim Sha Tsui, Kowloon, in Hong Kong, one transparent resealable plastic bag containing a crystalline solid and suspected to be methamphetamine hydrochloride (Exhibit 2)  wrapped in tissue, was found inside the defendant’s left shoe.

5.In a subsequent video-recorded interview on the same day, the defendant admitted under caution and in the presence of an Urdu interpreter, among other things, that:-

(1)  He purchased Exhibit 1 for HK$500 from a male named “Bari” an hour before his arrest;

(2)  He was told that Exhibit 1 were counterfeit money; and

(3)  He purchased 2.3 grammes of “Ice” from a male at HK$800 for self-consumption. He consumed a bit of the “ice” upon purchase.

6.Upon examination by the Commercial Crime Bureau, Exhibit 1 was found to be counterfeit notes.

7.The Government Chemist subsequently confirmed that Exhibit 2 was 2.19 grammes of a crystalline solid containing 2.11 grammes of methamphetamine hydrochloride (a salt of methamphetamine).

8.At all material times, the defendant was in custody or control of Exhibit 1, which was, and which he knew or believed to be, counterfeit currency notes, intending either to pass or tender them as genuine or to deliver them to another with the intention that he or another would pass or tender them as genuine (Charge 1).

9.At all material times, the defendant was in possession of Exhibit 2 (Charge 2).

THE DEFENDANT’S BACKGROUND

10.The defendant is 32 years old.  His father is 65 and his mother is 61 years old.  The defendant is the youngest and has three older siblings.  His two elder sisters are married and live in Hong Kong, whilst his elder brother lives in Pakistan.

11.The defendant came to live in Hong Kong at around the age of 8.  He studied up to primary 6 here.  Although he can speak Cantonese, he cannot write Chinese.  After leaving school, he developed skills as a renovation worker and had odd jobs from time to time.  He has been unemployed since 2018.  At the time of the offences, he lived with his family in a cubicle rented by his parents.  He relied on his family for financial support.

12.The defendant has been taking drugs since about 2013 and has experimented with different types of drugs.  He sought help from his parents in respect of his drug addiction but they only told him to stop taking drugs.  Since his remand, his parents and family have suggested that he enrols in a rehabilitation programme offered by Christian Aid and he accepts that suggestion.

APPLICABLE LEGAL PRINCIPLES

13.The offence of having custody or control of counterfeit notes is a serious offence.  The use of counterfeit bank notes not only undermines the confidence in the Hong Kong currency system, it also adversely affects Hong Kong as an International financial and banking centre.

14.There are no tariffs or sentencing guidelines for being in custody or control of counterfeit bank notes.  The sentence depends on the circumstances of the facts of each case, including the value, quantity, quality/degree of sophistication of the banknotes and whether the defendant had used them, and if so, whether he was successful: See R v Ngan Chun Yee & Others (unreported CACC 137/1984); R v Chow Tin-wah [1991] 1 HKLR 68.

15.As for Charge 2, the Court should adopt a 3 step approach in considering sentence for simple possession: HKSAR v Wan Sheung-Sum [1991] HKCU 1610 and HKSAR v Mok Cho-tik [2001] 1 HKC 261.

DISCUSSION

Charge 1

16.Counsel relied on the case of HKSAR v Khan Bilal [2020] HKDC 855. In that case, apart from other drug related charges, the defendant pleaded guilty to 1 charge of “having custody or control of 24 counterfeit US$100 currency notes”.  That is a District Court case which is not binding on this court.

17.In HKSAR v Leung Wai Han CACC 102/2002, the defendant pleaded guilty to 2 charges of “having custody or control of counterfeit notes”.  There were a total of 34 counterfeit notes and the total face value was HK$3,320.  The trial judge sentenced the defendant to a total of 2 years’ imprisonment after giving him a 40% discount for the assistance given to the police which led to the arrest of another defendant.  In other words, the starting point was 40 months’ imprisonment.  The Court of Appeal held that the trial judge committed no error of principle in sentencing the applicant for those two charges and was satisfied that the overall sentence of 2 years’ imprisonment for those charges was not manifestly excessive.

18.In the present case, the defendant was in possession of 54 counterfeit notes.  The number of counterfeit notes is more than double of that in Khan Bilal and 11 more than in Leung Wai Han.  I also note that the defendant in Leung Wai Han faced two charges whilst the defendant in the present case only faces one charge of possession of counterfeit notes.  I also recognize that in Leung Wai Han, because there were 2 similar charges which were committed within the space of 2 days, a higher starting point was warranted.

19.The fact that all the counterfeit notes had the same serial number is not a mitigating factor.  As was conceded by counsel, people in receipt of these notes would not usually pay attention to the serial numbers. In most of these cases, the counterfeit notes are used individually to pay for very small amounts.

20.Sentencing is not a mathematical exercise.  In the light of the number of counterfeit notes in the present case, I adopt a starting point of 3 years (ie 36 months).

21.As for Charge 2, counsel conceded that in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 and HKSAR v Mok Cho-tik [2001] 1 HKC 261, the appropriate starting point for possession of heroin or methamphetamine was 12 to 18 months’ imprisonment.  In Mok Cho-tik, the Court of Appeal stated that:-

“The starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months. But that was not ‘the be all and end all’ of the appropriate starting point. The quantity would be the main governing factor which would determine where the starting point would lie. If an offender was a persistent offender, he could expect the starting point to be higher than it otherwise would be: HKSAR v Chan Yat Sing (CACC 777/1997, unreported), HKSAR v Lau Chi Chiu (CACC 395/1998, unreported), HKSAR v Lai Kam Sang (CACC 578/1998, unreported), HKSAR v Chew Sik Pok (CACC 502/1998, unreported)  and HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 followed (at 266C-267D).

The existence of the risk factor and the degree of risk were not a matter of mathematics upon which the court should provide a tariff. Amongst the obvious factors to be taken into account were: whether the offender was in employment; whether the drugs were kept in a place to which others had access; whether the offender had convictions for trafficking; and the quantity of drugs. The full circumstances of the risk must be assessed.”

22.In the present case, the quantity of drugs was small.  I adopt a notional starting point of 12 months’ imprisonment.  The defendant was unemployed.  However, the drugs were kept inside his shoe, to which others would not have access.  He had no previous convictions for trafficking.  The latent risk was very low.  However, there are a number of aggravating factors.  The defendant admitted to the police that he committed these 2 offences within the space of one day.  He had 2 previous convictions for possession of dangerous drugs, the last of which was dated 29 April 2020, when he was sentenced to 6 months’ imprisonment.  In other words, he committed the present offences shortly after his release from prison.  Counsel submitted that what the defendant really needs is rehabilitation.  She also submitted that the defendant committed Charge 1 to feed his drug habit.  I disagree.  Committing an offence to feed one’s drug habit is and has never been a mitigating factor.  This is not his first conviction for a drug offence.  In the last few years, the defendant has committed an offence as soon as he was released from prison.

23.The starting point is increased by 6 months to reflect those aggravating factors (ie a starting point of 18 months’ imprisonment).

24.The defendant has pleaded guilty at the first opportunity and is entitled to the full one third discount.  The sentence for Charge 1 is reduced to 2 years.  The sentence for Charge 2 is reduced to 12 months.

25.The two offences are completely different in nature.  Although they were committed within the space of a day, they were committed at different times.  It is well settled that the sentences should be consecutive.  However, the court is required to consider totality.  I am of the view that an overall sentence of 2½ years would be appropriate.  I therefore order that 6 months of the sentence for Charge 2 to be served consecutively to the sentence for Charge 1.

26.The defendant committed a further similar offence after he was arrested for the present offences and is now serving a 6 months’ sentence (Case No WK/1625/21).  That offence was committed whilst on bail for the present case and was clearly committed on a different date.  In any event, his release for that sentence is imminent.  I order that the sentences in the present case to be served consecutively to the sentence in WK/1625/21.