HKSAR v. Maristela Rhea Nerissa Curbi and Another

CACC 246 /2021

[2022] HKCA 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 246 OF 2021

(ON APPEAL FROM DCCC NO 20 OF 2021)

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J U D G M E N T

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1.The 1^st and 2^nd applicants, who were D1 and D2 at trial respectively, faced three charges of passing or tendering a counterfeit currency note, contrary to section 99(1)(a) of the Crimes Ordinance, Cap 200. Having pleaded not guilty to all charges before HH Judge Woodcock in the District Court, the 1^st applicant was sentenced to 2 years’ imprisonment and the 2^nd applicant to 2 years and 3 months’ imprisonment, on 29 October 2021. Both applicants are unrepresented, having had their applications for legal aid refused. The 1^st applicant seeks leave to appeal against her conviction and sentence, whilst the 2^nd applicant seeks leave to appeal against his sentence only.

2.A substantial part of the case proceeded by way of admitted facts.  These admissions included the passing of the counterfeit banknotes at the relevant times and places[1]; the counterfeit nature of the banknotes in question[2]; and the production of the video recorded interviews (“VRIs”) of both applicants^[3].  Accordingly, the judge noted that “the only issue” at trial was whether each applicant had the requisite knowledge or belief that he/she had passed or tendered counterfeit currency notes^[4].

Charge 1

3.The 1^st charge averred that the two applicants, on 20 June 2020, at a McDonald’s restaurant situated at Shop A-C, Ground Floor, Aik San Mansion, Nos 355-361 King’s Road in North Point, passed or tendered as genuine a HK$500 banknote, which was, and which they knew or believed to be a counterfeit currency banknote.

4.At about 4:43 pm on 20 June 2020, both applicants were together at the McDonald’s restaurant in question when the 1^st applicant produced to a cashier a purported HK$500 banknote as payment for two cups of ice cream.  She received change of HK$489.50.

5.Later that evening, the store manager checked the cash register and, on finding that a HK$500 banknote appeared to be counterfeit, the matter was reported to the police.

Charge 2

6.The 2^nd charge alleged that at about 6:45 pm the same day, the two applicants attended the Professional Hair Salon at Shop G1, Ground Floor, Block C of the North Point Centre, 278-288 King’s Road in North Point.  The 1^st applicant had her hair cut, whilst the 2^nd applicant sat near the entrance.  The 1^st applicant also purchased a hair oil product.  She then paid HK$188 for the haircut and hair oil with another purported HK$500 banknote, for which she received HK$312 in change. 

7.Later that day, the salon owner checked the accounts for the day and discovered a suspected HK$500 counterfeit banknote. Accordingly, she reported the matter to the police.  Closed circuit television (“CCTV”) footage captured both applicants inside the salon on the evening of 20 June 2020^[5].

Charge 3

8.The 3^rd charge alleged that at about 8:40 pm the same day, the two applicants attended a different McDonald’s restaurant in North Point, which was located at the Basement floor, Roca Centre, 460-470 King’s Road in North Point.  There, the 1^st applicant, in the company of the 2^nd applicant, purchased food and made payment with another purported HK$500 banknote, for which she received $413 in change.

9.At 9 pm that night, the manager checked the cash in the till and found a suspected counterfeit $500 banknote, as a result of which the matter was reported to the police.  CCTV footage also captured both applicants, at about 8:40 pm on 20 June 2020, making payment inside the restaurant^[6].

The video recorded interviews (VRIs)

10.After their arrests on 16 July 2020, both applicants participated in VRIs.  The 1^st applicant said that the 2^nd applicant had sold a pair of his own shoes to a male stranger for HK$2,000 and arranged the exchange at an exit of Wanchai MTR station.  The 2^nd applicant was given four HK$500 banknotes in exchange for the shoes and, later on the same day, when there was a need to pay for goods or services, the 2^nd applicant gave the 1^st applicant a HK$500 banknote on three separate occasions^[7].

11.The 1^st applicant claimed that the sale of the 2^nd applicant’s shoes had been arranged through her ‘Carousell App’, an online community marketplace platform that allows users to buy and sell goods^[8]. When asked for details of her account, she said she had deleted this ‘App’ after the sale and did not recall any details of her account or, indeed, her username^[9].

12.She admitted having tendered or passed over the money on all three occasions and that just prior to each payment, she was given a HK$500 banknote by the 2^nd applicant^[10].

13.In his VRI, the 2^nd applicant said that it was the 1^st applicant who had sold a pair of Alexander McQueen shoes belonging to her mother to a girl friend of hers for $2,000.  However, he could not provide details of that friend.  He maintained that when later they realised the banknotes were counterfeit and tried to contact the friend, they were unsuccessful.  The 2^nd applicant claimed that he had never physically handled any of the money, nor did he give the 1^st applicant any banknotes on any of the three occasions^[11].

14.Both maintained that they did not realise the banknotes were counterfeit until they were left with one banknote, after which the 1^st applicant threw it away. 

15.CCTV footage was produced of the hair salon (Charge 2) and the second McDonald’s restaurant (Charge 3).  The judge described the 2^nd applicant as surreptitiously handing something to the 1^st applicant just before the making of each payment.  She also noted that, in the hair salon at 6:52 pm, the 2^nd applicant could be seen giving the 1^st applicant what looked like a banknote, which she then placed in her wallet, before turning around to pay the salon owner with a banknote taken from the same wallet^[12].

The defence case

16.Both applicants denied knowing or believing at the material time when payment was made that the banknotes were not genuine. However, neither applicant elected to give evidence.  Counsel for each applicant at trial submitted that the prosecution had failed to prove to the required standard that the applicant knew or believed the banknotes in question were counterfeit^[13].

Reasons for verdict

17.The judge found the applicants had given different accounts in their VRIs but rejected what they had each said in their interviews as incredible, unreliable and fictional^[14].  However, she was careful to say that she did not find their accounts incredible because they were different[15]. She found that they had both targeted McDonald’s restaurants because they were places where the cashiers were likely to be busy.  By tendering a large banknote for a relatively small item, they could receive a large amount of clean money as change^[16].

18.In relation to Charges 2 and 3, the judge found that the CCTV footage clearly showed the 2^nd applicant giving the 1^st applicant something that looked like a banknote, particularly in the hair salon, just before payment was due.  While this action may not be enough to prove guilt by itself, it was coupled with the fact that the 1^st applicant then immediately tendered a counterfeit banknote^[17].

Reasons for sentence

19.The judge noted there were no guidelines for sentencing in cases such as this, but that the offences were nevertheless serious, inasmuch as they affected the financial system and reputation of Hong Kong; accordingly, a deterrent prison sentence was necessary^[18].

20.The judge considered the following factors were relevant to sentencing: the amount involved; the number of counterfeit notes; and the loss suffered by innocent businesses.  In respect of the latter consideration, the judge commented that the hair salon was a small self-owned business which could ill afford to lose money in such a way^[19].

21.The 1^st applicant was 26 years of age at the time of sentencing, single and, although born in the Philippines, had been in Hong Kong half of her life.  She had two young children, who live with her an ex-boyfriend and his family.  She holds a Hong Kong identity card.  She has one previous conviction for possession of dangerous drugs in 2015 and two for gambling in a gambling establishment in 2020.

22.The 2nd applicant was 37 years of age at the time of sentencing and has family in Hong Kong.  He came to Hong Kong as a tourist in 2010 and never left, making a claim for asylum in 2016.  He was convicted in 2015 for breach of condition of stay and had further convictions for theft in 2018, 2019 and 2021.  He also had two convictions for gambling in a gambling establishment, on the same occasions in 2020 as the 1^st applicant’s convictions^[20].

23.The judge adopted a starting point of 2 years’ imprisonment for the individual charge in respect of each applicant but enhanced the 2^nd applicant’s sentence by 3 months on each charge, given his status as a Form 8 recognizance holder, before ordering all sentences in respect of each applicant to run concurrently with each other.

Consideration

Conviction

24.The judge noted that the offences occurred within a few hours of each other on the same day and, on each occasion, a HK$500 banknote was used to buy, at least in the case of Charges 1 and 3, relatively small items which would result in a large amount of genuine change being given.  As a matter of common sense and every day experience, one does not use three banknotes of large denomination in quick succession to procure goods and services of little value unless one wants to break the banknotes and get change for some reason.  That is, of course, exactly what the judge found that applicants wanted to do; but not for any innocent reason.  Rather, their intention was to obtain genuine money by way of change for counterfeit banknotes.  And by targeting McDonald’s restaurant, they could be sure of conditions where the cashiers would not scrutinise the transactions too closely.

25.I see no reasonably arguable ground of appeal that the judge’s reasoning either miscarried or is open to question.  The evidence and inference from that evidence seem overwhelming.  The application for leave to appeal against conviction by the 1^st applicant is refused.

Sentence

26.In relation to the application of both applicants for leave to appeal against sentence, these offences are not unlike tendering forged credit cards, at least in terms of their effect, except of course that innocent victims have no recourse against anyone, certainly not a bank, for the losses they suffer.  Obviously, the two applicants were part of, or at the very least were knowingly made use of by, something bigger that was responsible for producing counterfeit banknotes; just as those who tender forged credit cards play their part in furthering the aims of a larger syndicate.  It must be remembered that those who use forged credit cards and banknotes are essential to the forger’s operation.  I believe an appellate court would find these to be very serious offences, for which, with respect, the sentences passed after trial were somewhat lenient.  The maximum sentence on indictment for this offence is 14 years’ imprisonment, which reflects how seriously this offence is viewed by the legislature.  I do not think either applicant could have complained if they had received a higher overall starting point.

27.In relation to the 2^nd applicant’s enhancement of sentence of 3 months’ imprisonment for his status as a Form 8 recognizance holder, it is true, as the judge said of this factor, that “there are no guidelines for enhancement”[21]. However, it should be pointed out that in HKSAR v Ali Saif[22], the Court said:

“When Shah Arif[23] was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

These remarks were, of course, said in the context of serious cases of drug trafficking.  But they are arguably also applicable to any serious case which comes before the District Court, as did this case.

28.I do not find any reasonably arguable grounds of appeal against sentence and the applications for leave to appeal by each applicant are refused.

Loss of time warning

29.Both applicants have the right to renew their respective applications to the Court of Appeal.  However, in view of my remarks concerning sentence above, they are each warned that the Court has the power to order the loss of any time which either applicant has spent in custody pending his or her appeal, if the Court were to come to the conclusion that there was no justification for the renewal of the application.

The 2^nd applicant’s absence

30.I would like to record that the 2^nd applicant was not present at this leave application because of public health concerns at the prison where he is being detained.  Nevertheless, I proceeded in his absence under the provisions of section 83U(1) of the Criminal Procedure Ordinance, Cap 221 for three reasons: firstly, no valid written grounds of appeal have been articulated in respect of sentence by the 2^nd applicant (or, indeed, against conviction and sentence by the 1^st applicant); secondly, the 1^st applicant’s earliest date of discharge from prison in respect of the present offence is 15 March 2022 (in five days’ time) and it is not fair for her to have this matter adjourned to wait for the 2^nd applicant, which would result in her sentence for this offence being served; thirdly, the 2^nd applicant’s earliest date of discharge for the present offence is now uncertain in view of other offences he has committed; but, so far as this offence is concerned, it should fall two months later (assuming good behaviour) than that of the 1^st applicant, namely sometime in May 2022.

31.All of these factors should be set against the circumstances of the courts entering a General Adjourned Period (“GAP”), the length and extent of which is uncertain.  Leave having been refused in respect of the 2^nd applicant, he is nevertheless still entitled, as I have said, to renew his application for leave to appeal against sentence to the Court of Appeal, so the avenue of appeal is not closed to him.  If his leave application is not dealt with now but is adjourned to sometime after GAP, any renewal of his application before the Court of Appeal will run the same risk of being dealt with after his sentence in respect of this offence has been served; in circumstances where there is likely to be a long backlog of cases arising from GAP. 

32.I was satisfied that it was in the interests of justice and also public order (which, to my mind, includes public health considerations caused by the Covid-19 pandemic) to proceed with the 2^nd applicant’s application in his absence under the terms of section 83U(1) of the Criminal Procedure Ordinance.

[1]    Appeal Bundle (“AB”), pp 9-11, at paras [1]-[9].

[2]     AB, p 12, at para [16].

[3]     AB, p 12, at paras [13]-[14].

[4]     AB p 14I-J.

[5]     AB, p 15P-R.

[6]     AB, p 16A-C.

[7]     AB, p 17B-G.

[8]     AB, p 17I-J.

[9]     AB, p 17J-K.

[10]   AB, p 18I-K.

[11]   AB, p 17P-Q.

[12]   AB, p 18L-P.

[13]   AB, p 19L-M.

[14]   AB, p 20M-P.

[15]   AB, p 20O-P.

[16]   AB, p 20Q-U.

[17]   AB, p 21B-H.

[18]   AB, p 23N-R.

[19]   AB, p 24I-M.

[20]   AB, p 24C-H.

[21]   AB, p 24T-U.

[22]   HKSAR v Ali Saif [2018] 6 HKC 19, at [17].

[23]   HKSAR v Shah Syed Arif [2016] 4 HKLRD 664.