HKSAR v. Leung Ka Wing

DCCC 12/2021

[2021] HKDC 1282

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 12 OF 2021

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to, charge 1: making a counterfeit note; charge 2: custody of counterfeiting materials and implements is left on court’s file.

The prosecution case

2.On 4^th August 2020, the defendant was intercepted by the police at Tai Nan Street, the defendant was later brought back to his home for a house search.

3.Upon search, the following items were found inside his bedroom:-

(a)  One counterfeit of a HK$500 currency note bearing serial number AD326960;

(b)  One partially finished mirror image of a HK$500 currency note bearing serial number AX429707 which was attached to a plastic board which bearing the etched images of the BOC Tower and the number “500”;

(c)  One paper cutting board;

(d)  One “Cannon” printer;

(e)  One pile of A4 size paper;

(f)  One laptop computer containing 26 images resembling $500 Hong Kong currency notes, 3 images resembling $100 Hong Kong currency notes and 2 images resembling the watermark of $500 Hong Kong currency notes;

(g)  One mini grinding machine; and

(h)  Some broken pieces of counterfeit of HK$500 currency notes.

4.Under caution, the defendant admitted, the two HK$500 banknotes were printed by him.  In a further video-recorded interview (“VRI”), the defendant admitted,

(a)  He was in financial difficulty and made the HK$500 counterfeit note for his own use.

(b)  He learned how to make counterfeit notes on the internet, he downloaded the banknote and watermark image and edited the banknote by adding a serial number. He printed out the counterfeit note after editing.

(c)  He had made the counterfeit notes for a month and had used the counterfeit notes for 3 to 4 times.

Mitigation and sentence

5.The defendant is 27 years old.  He came from a broken family, his mother left him and his little brother when he was 5, and has never seen her again.  His father, who had physically abused him when he was little, it was so serious that the SWD had to intervene.  His father remarried when he was 15, but he never got along well with his stepmother.

6.Without adequate parental supervision, he started mixing with dubious peers and ended up in breaking the law, worst still, and got himself into drug problem.

7.Life has not been easy on him, in mid 2021, his girlfriend had a miscarriage after 7 months of pregnancy.  He relapsed into taking drugs again, that explains why he is now serving his sentence in DATC. He has 4 previous conviction records but not similar.

8.As to the offence itself, counsel submitted, he committed the present offence out of ignorance, playfulness and naivety.  The idea of making counterfeiting note originated from a movie, needless to say, the movie was about making and using counterfeit notes.

9.The defendant is now truly remorseful, he has always been cooperative with the police.  He is determined to start a new life once these proceedings are over and planning to marry his girlfriend and get rid of his drug problem, furthermore he is eager to obtain some qualifications from the Open University and to enter the financial or lending industry once he is released.

10.There is no tariff for the offence of making a counterfeit note, counsel has very helpfully submitted various authorities for the court’s consideration.

11.I will repeat those as summarized by the defence counsel, in HKSAR v Leung Wai Han, the applicant was convicted of two counts of custody or control of counterfeit notes with intent.  The applicant had 33 counterfeit HK$100 notes and one counterfeit HK$20 note in her purse and handbag (total amount being HK$3,320).  She was arrested on the street with the handbag, and the purse was found by another person two days earlier on the street.  The judge adopted a starting point of 2.5 years’ imprisonment for each of the counterfeit charges.  The final sentence was upheld on appeal.  In Li Tsz Chung, the defendant was convicted after plea of a charge of making counterfeit currency notes with intent, namely two HK$500 banknotes.  On two separate occasions, the applicant paid for delivery meals with a counterfeit HK$500 banknote and received change.  The restaurants reported the fake notes to the police.  The applicant admitted making them “by photocopying them on a colour printer”.  The judge applied a starting point of 2.5 years’ imprisonment, enhanced by 3 months for his “truly appalling” criminal record.  The Court of Appeal held the lower court was entitled to find the applicant demonstrated “forethought or the application of intelligence” in using the counterfeit notes with two different restaurants on different dates and receiving change.  But the court also said it was “clear that the level of sophistication involved in the making [of the] counterfeit banknotes was relatively low, involving no more than the use of a colour printer” (emphasis added).  The Court referred to the case of Leung Wai Han and concluded that the “judge was entitled to take 2½ years’ imprisonment as the starting point”.

12.Counsel has submitted, the present case is far less serious than the above cases, only a single $500 note was involved, the method of producing the counterfeit note was not sophisticated, it only involved the use of a colour printer, and no actual use of the note.  In this regard, I have confirmed with the prosecution, even though in the defendant’s VRI, he admitted using the counterfeit note, concerning the present charges, the prosecution agreed it is not related to the current charges.

13.I have had the opportunity of seeing and feeling the note itself, it is not of a very high quality and by touching it, one can easily tell it feels different from any real banknote.

14.Having considered the submission made and all mitigation put forward, I agreed this case is less serious than those authorities mentioned earlier, and it warrants a lower starting point.  I will adopt a starting point of 18 months, given his records are not similar, I will not enhance the starting point, giving him full 1/3 discount, the defendant is sentenced to 12 months’ imprisonment.

15.Lastly, there is no dispute that the defendant is in breach of a suspended sentence imposed on him on 12^th June 2019, he was fined HK$6,000 and sentenced to 1 month’s imprisonment suspended for 2 years, however, I do not consider it is just to activate it on 2 grounds, the suspended sentence relates to an offence of different nature, secondly, the commission of the present offence was within the suspension period, but the suspension period had already expired in June this year, that said, I will make no order as to the suspended sentence.