HKSAR v. De Vera Gladys

DCCC 120/2023

[2024] HKDC 1308

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 120 OF 2023

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REASONS FOR SENTENCE

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1.The defendant was charged with one count of passing or tendering counterfeit currency notes, contrary to section 99(1)(a)  of the Crimes Ordinance, Cap 200 and one count of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221. The defendant pleaded guilty, admitted the facts and was convicted accordingly.

FACTS

2.Around 3pm on 10 July 2022, Victim agreed to sell two mobile phones for HK$2800 via Facebook and arranged to meet the buyer at MTR Jordan Station at 7pm on the same day.  At the meeting point, the defendant approached the victim and said she came to trade for two mobile phones.  The defendant passed 6 counterfeit $500 banknotes to the victim for the phones and walked away.

3.While counting the banknotes, the victim suspected they were counterfeit, and gave chase to the defendant.  A nearby police officer noted the chasing and intercepted the defendant.  The officer checked and found the banknotes had the same serial number and then arrested the defendant.

4.Around 11:45pm on the same day, in a video-recorded interview, the defendant stated under caution that she was purchasing the phones from the victim and would deliver the same to a relative in Philippine.  

5.The defendant was subsequently charged for the present case.  At the hearing on 6 February 2023 at Magistrates’ Court, the case was transferred to the District Court with the next hearing date scheduled on 23 February 2023.  She was granted court bail in the interim.

6.The defendant failed to attend court on 23 February 2023, a warrant of arrest was issued against her.  She was arrested for another offence around 12:41pm on 22 September 2023 and her wanted status was revealed.  She was re-arrested for the present case later on the same day.

MITIGATION

7.The defendant aged 41, a Philippine National who first came to Hong Kong in 1997 as a dependent child of her Filipino mother and American father.  The parents are living in USA, while her siblings live in Philippine, her elder brother passed away around 2 July 2024. She is single mother with a son aged 18, currently looking after by her aunt in Philippine. 

8.After completing her secondary education, the defendant mainly worked as a waitress.  She was first convicted for shoplifting and possession of dangerous drugs in June 2013.   Since then she has 11 convictions with 16 Counts mainly shoplifting and possession of dangerous drugs.  She is a drug addict and has been to DATC on three separate occasions.

9.The defendant obtained the counterfeit notes from an India male introduced by a friend.  She was affected by drugs when she used the notes to purchase the phones.  The deception did not work as the lighting was good and the notes were of poor quality.  The defendant was quickly apprehended by Police and the phones were recovered intact.  She acknowledges that she has no reasonable cause to excuse her failure to surrender to custody and to attend court.

10.The defendant in her mitigation letter expresses her regret and states that because of her background, she grew up to become a weak willed young adult and hooked on drugs.  The addiction seriously clouded her judgments in her life and led her into engaging in criminal activities.  She has determined and committed to correct all her previous wrongdoings.  Her son had a motorcycle accident and still hospitalized for recovery but no longer in critical condition.  She wishes able to take care her son as soon as possible. The prison chaplain wrote to confirm her remorse and determination.  The priest also attends court to give her support.   

11.Though the defendant has previous convictions, this is her first conviction on tendering counterfeit notes.  The nature of the offence is unsophisticated, small number of counterfeit notes involved with small total value.  The phones were recovered without damage and the victim suffered no loss.  She was co-operate with the police inquiry while there is no reasonable cause for her absconding.

12.In light of the authorities, the defence submits the appropriate starting point should be slightly less than 30 months imprisonment for Charge one and 9 months imprisonment for Charge two.  The defendant is entitled to the usual one-third reduction and taking consideration of the principle of totality, the defence urges the court to impose a final sentence in the region of about 24 months imprisonment.

SENTENCE

Charge One

13.There are no sentencing guidelines for the offence of passing or tendering counterfeit currency notes.  By section 99 of the Ordinance, a person who passes or tenders as genuine any thing which is, and which he knows or believes to be, a counterfeit of a currency note or of a protected coin is liable on conviction on indictment to imprisonment for 14 years.

14.The defence refers me to HKSAR v Muhammad Munsha CACC 412/1999 where the applicant pleaded to a charge of having custody or control of 42 counterfeit HK$1,000 banknotes and was sentenced to 20 months’ imprisonment.  The applicant advanced two reasons to support his appeal against sentence: one related to the health of his father, the other was about the condition of his wife.  The father’s medical certificate indicates that was a long-standing illness while there was no supporting document in the case of the wife.  The Court of Appeal considered the application was without merit. 

15.In HKSAR v Li Ho Yin CACC 128/2013, The Court of Appeal referred to HKSAR v Li Tsz Chung (CACC 312/2011 and CACC 314/2011)  where it was held that a starting point of 2½ years’ imprisonment was appropriate for a charge involving using two counterfeit $500 banknote and received change. The Court also referred to HKSAR v Leung Wai Han (CACC 102/2002), where it was held that a starting point of 2½ years was appropriate for the possession of 33 counterfeit $100 notes.

16.From the facts she admitted, the defendant was fully conscious at the material time, she used six counterfeit HK$500 notes to deceive two mobile phone valued at HK$2,800.  In view of the unsophisticated nature of the offence and no loss suffered by the victim.  I consider the appropriate starting point of Charge one is 30 months’ imprisonment. 

17.The defendant’s criminal records constitute an aggravating factor.  She has 9 previous conviction records and was sentenced to 3 months’ imprisonment for theft on 27 January 2022; shortly upon release she committed Charge One on 10 July 2022.  However, she has no similar previous conviction, and the 5 months’ imprisonment imposed in September 2023 for two offences committed after this offence was served.  That being the case, I make no enhancement to the starting point. 

Charge Two

18.A person admitted to bail who, without reasonable cause, fails to surrender to custody as shall have been appointed by a court, is liable on conviction upon indictment to a fine of any amount and to imprisonment for 12 months.

19.The defendant failed to attend court on 23 February 2023 and a warrant was issued for her arrest.  Her wanted status was revealed upon her arrest of another offence on 22 September 2023, she was then re-arrested on the same day.   I consider the appropriate starting point is one of 9 months’ imprisonment. 

20.The defendant pleaded guilty, she is entitled to the usual 1/3 reduction.   There is no supporting document for the condition of the defendant’s son or the alleged traffic accident and I am informed today the son is no longer in critical condition.  In any event, the criminal record of the defendant suggests that she was not involved in the care and control of the boy.  I can understanding that being a mother, she is anxious to know the progress of his recovery, but I do not consider there to be any further mitigating factor in her case. 

21.Charge one and Charge two are two separate offences and different matters.  This is her 4^th record of absconding with warrant executed since 2013, her last record of absconding with warrant executed was with ESCC 1335/2021 sentenced on 27 January 2022.  Having consider the total length of the sentence, I consider the term of the two charges should run consecutive with each other.

ORDER

Charge one 20 months’ imprisonment;

Charge two 6 months’ imprisonment, consecutive with Charge one, making a total of 26 months.