HKSAR v. So Ka Wai, Venus

DCCC 966/2023

[2024] HKDC 830

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 966 OF 2023

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REASONS FOR SENTENCE

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1.The defendant is convicted on her own plea and agreement to Summary of Facts to a charge of passing or tendering counterfeit currency notes, contrary to section 99(1)(a)  of the Crimes Ordinance, Cap 200.

Facts

2.On 4 May 2022, the defendant entered a 7-Eleven convenience store (“the Store”). She handed to the shop assistant of the Store 2 pieces of purported HK$100 banknotes (“the Banknotes”)  to top her AlipayHK account.

3.The store assistant noted the Banknotes were of inferior quality and suspected they were counterfeit. He asked the defendant to take her mask off and took a half-body portrait of her for filing a police report. The defendant subsequently ran away from the Store.

4.On 6 May 2022, police intercepted the defendant and she was arrested for “passing counterfeit notes”. The defendant asserted, under caution, that she passed the Banknotes at the Store.

5.On 7 May 2022, under caution, the defendant asserted inter alia that she found the Banknotes somewhere on the street one day and that when the Banknotes were shown to her, she confirmed they were the counterfeit banknotes passed to the shop assistant at the Store on 4 May 2022.

6.Counterfeit currency expert at the Police Force examined the Banknotes and found them to be counterfeits of currency notes.

7.On 4 May 2022, at the Store, the defendant passed or tendered as genuine, the Banknotes, which were, and which she knew or believed to be counterfeits of currency notes.

Criminal Record

8.The defendant has 4 previous criminal records involving convictions of 4 charges, none of them was similar to the present charge.

Mitigation

9.The defendant is now aged 34. She is single. She has a stable relationship with her boyfriend, and out of their relationship, a daughter was born. The defendant received education up to Form 4. She used to work as a stationery sales earning HK$7,000 to HK$8,000 per month. At the time of offence, she was unemployed and relied on CSSA.

10.The defendant had 3 daughters altogether, aged 10 and 9 and the recently new-born of 7 months. The two elder daughters were kept under the care of Po Leung Kuk childcare services whilst the youngest daughter who was born whilst the defendant was in custody is now in the care and control of the biological father and his mother.

11.Defence counsel said that the defendant really misses her baby daughter and hopes to get a lenient sentence so she can be a responsible mother. She also submitted that the defendant has tendered her guilty plea, which allows her to have one-third sentencing discount. It is also submitted that although the defendant has previous records, they are not similar in nature to the present offence.

12.Defence counsel submitted that the defendant is now deeply remorseful as to what she has done, she is determined to turn a new leaf that she has encountered the Christian faith while she was in custody, and that her chance of reoffending is very low.

13.Defence counsel also said that the defendant found the two subject banknotes on the floor, and out of monetary greed, she committed the offence.

14.Defence counsel conceded that for this type of offence, sentencing consideration should include the value, the quantity, the degree of sophistication of the counterfeit notes to the genuine notes, and whether the defendant did successfully use them. It is said that the two counterfeit banknotes involved in the present case was merely HK$200. Both of them displayed inferior printing quality, which were obvious to the eye. Therefore, the defendant failed to successfully use them at the Store and the Store suffered no loss.

15.Defence counsel referred this court to the case of HKSAR v 庾堂, DCCC 897/2015, where the court in that case adopted a sentencing starting point of 30 months’ imprisonment for Charge 2 which involved the use of two counterfeit HK$500 banknotes successfully. She urged this court to adopt a sentencing starting point of less than 30 months’ imprisonment.

16.She also submitted to this court mitigation letter from the defendant for consideration. The defendant said she was deeply remorseful for committing the offence out of greed, and that she had been undergoing drug abstinence programme in custody in the last few months. She hoped to be a good mother to her young daughter. She asked for leniency and vowed not to reoffend in the future.

Discussion

17.Before sentencing, this court has fully considered all that was said by defence counsel, the legal authorities referred, the defendant’s mitigation letter as well as the certificate of attendance from Christian faith.

18.Any person who commits this offence is liable on conviction upon indictment to imprisonment for 14 years.

19.There is no sentencing tariff for this offence.

20.In the case of HKSAR v Li Ho Yin, CACC 128/2013, the Court of Appeal said there is no sentencing guideline for this offence, and sentencing consideration will include the quantity of counterfeit notes, the face value, and the degree of sophistication of these notes to genuine notes. If the quantity and value of the counterfeit notes are substantial, the court will adopt a 5 to 6 years’ imprisonment as the sentencing starting point in order to deter the commission of this offence, to avoid counterfeit notes going into the banking system and disturbing the banking system in Hong Kong, also causing loss to the shops.

21.It is said that in the case of R v Ngan Chun Yee and Others, CACC 137/1984, where the defendant possessed 100 pieces of HK$1,000 counterfeit banknotes, the Court of Appeal clearly stated the sentencing starting point of 6 years’ imprisonment is appropriate.

22.In Li Ho Yin case, the defendant used one piece of counterfeit HK$100 banknotes to buy vegetables, and she was unsuccessful. The Court of Appeal adopted a 3-year sentencing starting point. It is noted that the defendant in that case had one similar conviction in the past.

23.In our case here, the defendant had used two counterfeit HK$100 banknotes. On examination of these notes and their photos, it is clear that the printing quality of these counterfeit notes are of inferior quality, cutting edges are not straight. These are all obvious to the eye and this might explained why they have caused suspicion of the shop assistant. The defendant has failed to use these notes to top up her Alipay account so there is no loss to the Store.

24.Defence counsel has referred this court to the case of 庾堂, where the court adopted a sentencing starting point of 2½ years’ imprisonment for passing two counterfeit HK$500 banknotes.

25.Considering the circumstances of this case, this court would adopt a sentencing starting point of 2½ years’ imprisonment. The defendant is entitled to full one-third sentencing discount by reason of her guilty plea. She is sentenced to 20 months’ imprisonment.

26.The defendant’s remorse had been subsumed in the one-third sentencing discount. Considering the exceptional circumstances of the defendant, having to give birth to a daughter while in custody and being separated from the daughter, this court on humanitarian ground would further discount her sentence by 3 months.

27.Accordingly, the defendant is sentenced to 17 months’ imprisonment in this case.