HKSAR v. Lau Ho Yi, Holly

DCCC 754/2020

[2021] HKDC 1638

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 754 OF 2020

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REASONS FOR SENTENCE

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1.The defendant was convicted on her own plea and agreement to Summary of Facts to two charges of having custody or control of counterfeit currency notes, contrary to section 100(1)  of the Crimes Ordinance, Cap 200 (1^st charge and 2^nd charge).

Facts

2.Around 3:33 am on 5 February 2020, police intercepted defendant at Waterloo Road near Canton Road and upon body search, 200 pieces of counterfeit HK$500 banknotes were found inside the left pocket of a jacket in a handbag carried by the defendant. 

3.Later, police also executed a search warrant at Room 8, a room of a guesthouse situated at 8^th Floor, Wai Wah Commercial Building, Nos 109-113, Portland Street, Mong Kok, Kowloon.  A paper bag was found under a mattress in the room, which contained 246 pieces of counterfeit HK$500 banknotes and 3 pieces of semi-finished counterfeit HK$500 banknotes.

4.Result of examination by expert in the Commercial Crime Bureau show that those 446 pieces were counterfeit HK$500 banknotes.

5.The defendant was arrested and under caution, she stated that a few hours before she was arrested, she was instructed to deliver the counterfeit banknotes to another for a reward of $3,000.  She was on her way to deliver the first batch but was intercepted by the police and the other batch of notes were still inside the room.  She admitted knowing that the banknotes were counterfeit banknotes. 

Criminal Record

6.The defendant has 4 previous criminal records involving convictions of 4 charges, none similar. 

Mitigation

7.The defendant is now aged 39.  She has received education up to Form 2. She was put in Children and Juvenile Home when she was young as her parents divorced and she ran away from home.  She married at the age of 18 and was divorced later due to domestic violence.  She had a son now aged 20 and had 2 other children, aged 6 and 8, from her courtship with her late boyfriend who died in the year 2015.

8.It was submitted the defendant is deeply affected by the death of her boyfriend and she was under stress to look after the 2 children.  She needed to seek assistance from psychiatrist and also resorted to dangerous drugs.  She committed the present offence due to financial problem. 

9.Whilst the defendant was in custody, her mother visited her and her mother also looked after the 2 children for the defendant.  It is said that the defendant is now deeply determined to start afresh and be a good daughter and a good mother on her release.  She had completed courses in psychology and food hygiene whilst she was in custody to enable herself to take up a decent job on her release.

10.Defence counsel referred this court to several authorities, namely, HKSAR v Wong Hoi Yat and Others [2006] 3 HKLRD 150, HKSAR v Chow Tin Wah [1991] 1 HKLR 68, HKSAR v Lam Wai Ming, CACC 44/2004 and HKSAR v Van Leuvan Alan Edward, DCCC 388/2019.  She submitted that the 2^nd charge of the present offence came to light because defendant provided information to the police voluntarily while she was making cautioned statement in connection with her arrest for the 1^st charge.

11.Defence counsel urged this court to adopt a lenient starting point of 4 years for both charges and make the sentences concurrent.  She also urged this court, in view of the circumstances of the case and the personal circumstances of the defendant, to give the defendant a chance and to be able to join her family as soon as possible.

Discussion

12.Before sentencing, this court has considered fully the mitigation submission by defence counsel, the letter in mitigation from the defendant, the psychiatric report of the defendant, the certificates of courses attended by the defendant as well as the legal authorities referred to this court. 

13.The offence of having custody or control of counterfeit currency notes is a very serious offence and the maximum sentence prescribed under section 100(1)  of the Crimes Ordinance, Cap 200, is imprisonment for 14 years. 

14.There is no sentencing guideline imposed for this type of offence.  The sentencing consideration will include the value, the quantity, the degree of sophistication of the counterfeit notes to the genuine notes, and whether the defendant had used them and if so, whether she was successful[1].

15.In this case, for the 1^st charge, 200 pieces of HK$500 counterfeit notes were involved.  Prosecution has conceded that the degree of resemblance of these counterfeit notes to the genuine ones is not high.  Having regard to the circumstances, this court considers appropriate sentencing starting point is 3 years and 9 months.  The defendant is sentenced to 30 months’ imprisonment by reason of her guilty plea for which she is entitled to full one-third sentencing discount. 

16.It was submitted by defence counsel though had it not been the defendant, the 2^nd charge offence would not have come to light.  In HKSAR v Chu Kwok Chu [2013] 6 HKC 357, 361, Yeung VP said that in cases where the court failed to give the defendant further sentencing discount upon a plea than the normal discount when the defendant has pleaded guilty notwithstanding a lack of sufficient evidence to prove his guilt or where but for the voluntary confession, the defendant would not have been found guilty of the offence, did not mean that the defendant had a legitimate ground of appeal.

17.Accordingly, in this case despite the contention by defence counsel that the second offence surfaced because of the volunteering of information by the defendant, the defendant is not entitled additional sentencing discount over and above the one-third sentencing discount.

18.This court noted, however, that concrete efforts were made by the defendant to rehabilitate herself on release from prison, and having regard to her personal circumstances, in particular that she had 2 young children who obviously need her support and care and her unhappy childhood, this court would give further sentencing discount of 4 months to the defendant.  The defendant is therefore sentenced to 26 months’ imprisonment for the 1^st charge.

19.Likewise, for the 2^nd charge, 246 pieces of $500 counterfeit banknotes were involved.  For similar reasons, defendant is sentenced to 26 months’ imprisonment for this charge. 

20.Considering the totality principle and having regard to the overall culpability of the defendant in this case, namely the custody and control of actually 446 pieces of HK$500 counterfeit banknotes, this court considers that 30 months’ imprisonment is a just and proportionate sentence for the defendant in this case.  Accordingly, 4 months of the sentence in the 2^nd charge is to run consecutive to the sentence in the 1^st charge.  The rest of the sentence in the 2^nd charge is to run concurrent to the sentence in the 1^st charge. 

21.The defendant is therefore sentenced to a total of 30 months’ imprisonment for the offences in this case.