HKSAR v. Mohammad Faeem Durez

CACC 204/2021

[2022] HKCA 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 204 OF 2021

(ON APPEAL FROM DCCC NO 579 OF 2021)

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Before:  Hon Zervos JA in Court

Date of Hearing:  1 June 2022

Date of Judgment:  1 June 2022

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J U D G M E N T

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1.On 23 August 2021, the applicant pleaded guilty before District Court Judge Tse Ching (“the Judge”) to one charge of having custody or control of counterfeit currency notes (“Charge l”) and one charge of possession of a dangerous drug (“Charge 2”). He was sentenced to a total term of 2 years and 6 months’ imprisonment. The sentence was ordered to be consecutive to the sentence he was serving in respect of another charge of possession of a dangerous drug.[1]

2.On 14 September 2021, the applicant applied for leave to appeal against his sentence. The applicant appears in person, having had legal aid refused.

The brief facts

3.On 12 December 2020, the applicant was intercepted by police in Tsimshatsui. He was searched by the police who found in the pocket of his jacket 54 pieces of $100 Hong Kong currency banknotes with the same serial number, which were later confirmed to be counterfeit notes (the “counterfeit notes”). He was arrested and taken to Tsimshatsui Police Station, where he was further searched by the police. They found a transparent resealable plastic bag with 2.19 grammes of a crystalline solid, containing 2.11 grammes of methamphetamine hydrochloride (commonly known as Ice), wrapped in a piece of tissue inside his left shoe.

4.In a subsequent video recorded interview, the applicant admitted that he purchased the counterfeit notes about an hour before his arrest for $500; and the Ice for $800, which he said was for his own consumption.

5.It was an admitted fact that he knew the banknotes were counterfeit, which he intended to pass off as genuine; and that he was in possession of the Ice time of his arrest.[2]

The applicant’s mitigation

6.Defence counsel submitted mitigation on behalf of the applicant by setting out his background and the circumstances of the offence.[3] The applicant was 32 years of age at the time of the offence. He came to Hong Kong from Pakistan at the age of 8 years and received education up to primary 6 level.[4] He was unemployed since 2018 and relied on his family for financial support.[5] It was submitted that he had been drug dependent since 2013 and was in need of rehabilitation for his drug addiction.[6] A letter from the applicant was submitted to the Judge, in which he apologized for his wrongdoings and asked for the leniency.[7]

7.The applicant had four previous criminal convictions, three of which concerned possession of a dangerous drug.[8] The last conviction for possession was on 13 May 2021, for which he was sentenced to 6 months’ imprisonment.

The sentence

8.In respect of Charge 1, the Judge referred to and was guided by the case HKSAR v Leung Wai Han, unrep., CACC 102/2002, 3 September 2002, where the Court of Appeal did not consider a total sentence of 2 years’ imprisonment was manifestly excessive for possession of a total of 34 counterfeit notes with a total face value of $3,320.[9] She took into account the number of counterfeit notes involved in the present case and adopted a starting point of 3 years’ imprisonment.

9.In respect of Charge 2, the Judge applied the sentencing principles as set out in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, at 407E­H, and HKSAR v Mok Cho Tik [2001] 1 HKC 261, at 266C-267D. She adopted a starting point of 12 months’ imprisonment for possession of the quantity of drugs involved, which she noted was “small”. She took the view that the latent risk was very low, although there were aggravating factors, including he committed the two offences within the space of one day; he had previous convictions of possession of a dangerous drug, and he had committed the present offence shortly after his release from prison, having served his sentence in respect of a previous conviction for possession. The Judge therefore enhanced the sentence by 6 months to 18 months’ imprisonment to reflect the aggravating factors.[10]

10.In view of the applicant’s guilty pleas, the Judge gave the applicant a one third discount and reduced the sentence on Charge 1 to 2 years’ imprisonment and on Charge 2 to 12 months’ imprisonment. After taking into account the totality principle, the Judge ordered that 6 months of the sentence for Charge 2 to be served consecutively to the sentence for Charge 1, making a total sentence of 2 years and 6 months’ imprisonment.[11]

11.The Judge further noted that the applicant was serving a sentence of 6 months’ imprisonment for a previous offence of possession of a dangerous drug, for which his release from prison was imminent. She ordered that the sentence in the present case be served consecutively to that sentence. She also noted that the offence for which he was serving a prison sentence was committed whilst he was on bail for the present case.

The grounds of appeal

12.The applicant advances the following complaints about his sentence. He submits that the Judge adopted too high a starting point in the sentence for Charge 1, which he says was disproportionate to the circumstances, the degree of sophistication involved and the fact that there was no evidence of use of the counterfeit notes. He next submits that the enhancement of 6 months for Charge 2 was too high. He finally submits that the aggregate sentence of 2 years and 6 months’ imprisonment was manifestly excessive.

The respondent’s submissions

13.In respect of Charge 1, the respondent submits that there is no sentencing tariff for the offence of possession of counterfeit banknotes but it needs to be borne in mind that the maximum sentence for this offence is 14 years’ imprisonment. It was noted that in the case of Leung Wai Han, the defendant possessed 11 pieces counterfeit $100 and one piece $20 notes and a further 22 pieces of $100 notes within a matter of two days. In upholding the starting point of 40 months’ imprisonment for possessing a total of 34 pieces of counterfeit notes, the Court of Appeal agreed that the commission of the same offence more than once on separate and distinct locations is an aggravating feature.[12]

14.The respondent refers to HKSAR v Li Ho Yin, unrep., CACC 128/2013, 17 September 2013, where the defendant was intercepted after he was found using one counterfeit $100 note. Upon his arrest, another 26 pieces of counterfeit $100 notes were found on him. The defendant admitted he paid $500 for the 27 pieces of counterfeit money which were all of the same serial number. The Court of Appeal was of the view that the possession of counterfeit notes was an extremely serious offence as it does not only adversely affect the financial market, but also causes economic loss to innocent citizens and business sectors. While the Court did not provide sentencing guidelines for this offence, it stated that the length of sentence depends on “factors including the quantity, value and degree of sophistication of the counterfeit notes.” The Court remarked that the greater the quantity of counterfeit notes, the heavier the sentence should be.[13] The Court considered that the appropriate starting point in that case for possession of 27 counterfeit $100 notes was 3 years and 6 months’ imprisonment after taking into account the fact that the defendant had a similar previous similar conviction and committed the offence shortly after his release from prison.

15.The respondent submits that in the present, while the Judge accepted that the counterfeit notes were not of a high degree of sophistication, taking into account the substantial quantity and face value of the counterfeit notes involved, the imposition of a starting point of 3 years’ imprisonment cannot be criticised.

16.In respect of the sentence for Charge 2, the respondent submits that the Judge applied the correct steps in imposing the sentence for this offence. In view of the quantity of Ice involved, there is no cause for complaint with the starting point of 12 months’ imprisonment. Nor for the further enhancement of 6 months for the aggravating factors identified by the Judge.

17.The respondent finally submits that the Judge cannot be criticised for treating the two charges as separate and distinct for the purpose of sentencing the applicant. In applying the totality principle, the Judge correctly and appropriately ordered that 6 months of the sentence for Charge 2 to be served consecutively to the sentence for Charge 1.

Discussion

18.I agree with the respondent’s submissions. The Judge in her extensive reasons for sentence set out very clearly her approach and basis for sentencing the applicant in respect of the two charges. She identified relevant sentencing principles and, in my view, applied them sensibly and correctly in the circumstances of the case.

19.The possession of counterfeit notes is a very serious offence and the sentence the Judge imposed was appropriate, bearing in mind the quantity and value of the notes and the potential financial harm they could have caused when used. The possession of a dangerous drug reveals that the applicant has a serious drug problem and that is reflected by his previous convictions for possession. The Judge carefully took these matters into account, noting that the offence had been aggravated by his repeat offending for this offence.

20.I can find no fault in the Judge’s approach in sentencing the applicant for these two offences, bearing in mind the circumstances of the applicant and the offences. As part of her overall assessment of the sentence, the Judge applied the totality principle and accordingly calibrated the sentences.

Conclusion

21.I am not persuaded that the grounds advanced by the applicant are reasonably arguable. I therefore refuse his application for leave to appeal against sentence.

22.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Alice Chan, SADPP of Department of Justice, for the respondent

The applicant appears in person