HKSAR v. Saddi Souleymane

DCCC 744/2023

[2023] HKDC 1808

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 744 OF 2023

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to a single charge of having custody or control of counterfeit currency notes, contrary to Section 100(2)  of the Crimes Ordinance Cap 200.

2.The particulars of the offence showing the offence being committed on the 1 April 2023 in Sham Shui Po, there being eight pieces of counterfeit $500 notes which the defendant knew or believed to be counterfeit. The defendant has pleaded guilty to that charge, admitted the facts against him and been convicted.

3.As far as the facts are concerned, they show that the police saw a dispute between various persons on the street and moved in to intervene to prevent this dispute getting out of hand, this occurring on the afternoon of 1 April 2023. One of the males was seen heading off the scene towards the direction of Boundary Street. The police, after intervening, alighted from their police vehicle. The defendant at that time fled the scene but was eventually apprehended. There was something of a struggle when the defendant was apprehended and at a distance on the ground away from the defendant, the eight pieces of $500 counterfeit notes were found, together with a mobile phone and a tee-shirt which the defendant had taken off during the dispute. There is no dispute the defendant was in possession of those counterfeit notes.

4.At the police station, after some time, the notes were eventually examined. They were found to have the same serial number and also to be of a poor quality reproduction. I shall quote from the later examination of the notes by the currency expert, PW5. He said he examined the notes and noted that both sides of the currency notes displayed inferior printing quality and were printed by inkjet printing methods which is different from those of genuine currency notes and they were found to be devoid of security measures. The witness also noticed that the currency notes bore identical duplicated serial numbers and lacked unique serial numbers and the witness concluded that the currency notes were all counterfeit $500 currency notes.

5.As far as the defendant’s background is concerned, that could be seen from his antecedent statement. The defendant is a Nigerian male, born on 6 October 1980, be aged 43. He is the holder of a Form 8 recognizance in Hong Kong. He has received education to university standard in Nigeria. Naturally, being a Form 8 holder he was unemployed at the time of his arrest. He has no convictions but I note that a removal order was made in respect of him on 10 September 2015, so the defendant has been in Hong Kong for some period of time.

6.I follow now the approach to sentencing for this case. It is common ground that there is no tariff or guideline sentence for the section and subsection under which the defendant has pleaded guilty, that is Section 100(2)  of the Crimes Ordinance. The maximum sentence under this particular subsection is one of 3 years’ imprisonment.

7.I have been referred by the defence to a Magistracy Appeal, the case HKSAR v Feng Shi Bai which is an unreported case HCMA 177/2015. That case involved nine forged $500 bank notes of poor quality. It was dealt with in the Court of First Instance as an appeal from the magistrate.

8.The court determining the appeal against sentence did note that as far as Section 100(2)  of the Crime Ordinance is concerned there was no guideline or authority. In its Judgment the court referred to the case of HKSAR v Leung Wai Han, that is at CACC 102/2002, which relates to offences under Section 100(1)  which has a higher maximum sentence of 14 years’ imprisonment. In any event, the court in the case of Feng Shi Bai decided that a lower starting point would be appropriate where the case involved simply possession of the notes, in that case the $500 notes, and adopted a starting point for sentence in that case of 12 months’ imprisonment. I note in that case there were nine $500 notes of a poor quality.

9.I make reference now to the case of Leung Wai Han which has been if not a guideline at least the case that has been referred to most often in the sentencing of cases involving counterfeit notes. In that case I note a starting point of 2½ years in prison was adopted for an offence where notes of value of $3,320 were involved. There is also another case referred to in that judgment of HKSAR v Lee Ho Yin, that is at CACC 18/2013, which involved some 27 $100 notes and involving those larger quantity of notes starting points of 3 years or 3½ years were adopted as the starting point for sentence.

10.It is clear that under Section 100(1), the factors that will determine the starting point for sentence are factors such as the quality of the notes themselves, the quantity of the notes themselves and the value of the notes, also one could refer to the sophistication of the printing of the notes. I consider, as did the court in the Feng case that these factors are still appropriate for sentencing in cases under Section 100(2).

11.I note that in determining the starting point for this case as follows. Firstly, the quantity in this case here is a total of 8 pieces of $500 currency notes. The examination of the notes showed that they were of the inkjet printing method which means that they are of, although a good quality print, they do lack certain features that a genuine note would have such as the texture of the note and the security features and it is clear that they are forgeries after what I would describe as a cursory examination in the way they are similar to the notes that were presented to the court in the Feng case.

12.Taking all those factors into consideration, I would take in this case a starting point of 15 months’ imprisonment which is slightly higher than the 12 months’ adopted in the Feng case but that was an appellate case, that is not binding on me as it is an appeal from a magistrate. So I am taking a starting point at 15 months’ imprisonment.

13.The defendant is a Form 8 holder and that is an aggravating factor in respect of these offences. I will increase the sentence by 3 months to take into account the aggravating factor that the defendant is a Form 8 holder. This leaves me with a starting point now of 18 months’ imprisonment on this charge.

14.I consider that the defendant has indicated a plea of guilty at the appropriate time in this case, which is at the time at which he was informed by his legal advisors that a plea of guilty was appropriate after they had had an opportunity of investigating the notes fully. In that case I will give the defendant a full one-third discount from the 18 months sentence which leads to a final sentence of 12 months’ imprisonment and that will be the sentence of the court on this charge, one of 12 months’ imprisonment.