HKSAR v. Hu Wanxia

CACC 337/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 337 OF 2008 

(ON APPEAL FROM DCCC 741 of 2008)

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Before: Hon Stuart-Moore VP and Yeung JA in Court

Date of Hearing:  21 April 2009

Date of Judgment:  21 April 2009

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Background Facts

1.On 6 May 2008, the appellant (Hu Wanxia) together with Hu He (Hu), Xie Xueshao (Xie) and He Naidi (He) were found acting suspiciously near the Hill Road Park in the Western District.

2.The appellant, Xie and He, having collected counterfeit RMB 100-yuan notes from Hu, entered different convenience stores and a stationery store to make purchases.

3.The appellant and her accomplices were arrested and from the appellant, Hu, Xie, and He respectively, the police found 8 pieces, 82 pieces, 9 pieces and 3 pieces of counterfeit RMB 100-yuan notes.

4.The appellant and her accomplices were visitors from the Mainland and from the two pieces of luggage found at Ying King Apartment, the hostel where they stayed on the night of 5 May 2008, a further 601 pieces of counterfeit RMB 100-yuan notes were seized.

5.The appellant, under caution, admitted that she had purchased 800 pieces of counterfeit RMB 100-yuan notes in the Mainland for RMB 4,000 yuan and that the 601 pieces found from the luggage belonged to her. The appellant’s accomplices all claimed that the counterfeit RMB banknotes originated from the appellant.

6.The incident led to an indictment consisting of 8 charges against the appellant and her accomplices.

7.Having pleaded guilty, on 25 September 2008, before Deputy Judge Sham in the District Court to two charges (the 7^th and 8^th charges) of having custody or control of counterfeit RMB 100-yuan notes with intent, contrary to s 100(1) of the Crimes Ordinance, Cap 200, namely the 8 pieces and 601 pieces found from her person and from the luggage, the appellant was sentenced to a total of 32 months’ imprisonment on 2 October 2008.

8.The judge took the view that the appellant and her accomplices came to Hong Kong for the purpose of cashing in counterfeit RMB banknotes by buying small value goods with them at local shops and that the appellant was “the main player in the scam”. The judge adopted the respective starting points of 2 ½ years and 4 years for the 7^th and 8^th charges. The judge reduced the starting points by one-third to 20 months and 32 months respectively on account of the guilty pleas, and further ordered them to be served concurrently.

9.Having been granted leave by Yuen JA, the appellant appeals against the 32 months’ imprisonment, saying that the sentence is too heavy. The appellant claims, in her written submission, that her sentence is heavier than sentences in other similar cases. She asks for a reduction so that she can return home as soon as possible to take care of her children. The appellant tells us that she was told only some of the 800 RMB banknotes were forged and even claims that what she did had not caused too much harm.

Discussion

10.The offence of “custody or control of counterfeit notes with intent” is a very serious offence and the maximum sentence prescribed under the Crimes Ordinance, Cap 200 is imprisonment for 14 years.

11.Whilst there are no sentencing guidelines, sentences imposed on this type of offence in the past reflect the approach that should be adopted.

12.In R v Ngan Chun Yee & Others (unreported CACC 137/1984), the defendants were convicted of possession of 100 pieces of counterfeit $1,000 Chartered Bank banknotes and sentenced to the respective terms of 6 years, 4 ½ years and 6 years. The Court of Appeal, having examined the various authorities cited, were persuaded that the sentences “were higher than past practice”, and reduced the sentences to 4 years, 3 years and 4 years’ imprisonment. However Roberts CJ made the following comment at para 7:

“We should like to say that although we felt it proper to reduce these sentences because of the previously prevailing tariff for them, we consider that judges should consider increasing the tariff to the sort of level which was applied by the trial judge in this case, so that in future we would not be inclined to interfere with a sentence of 6 years’ imprisonment in a case of this nature, following a plea of not guilty and a conviction.”

13.In R v Chow Tin-wah [1991] 1 HKLR 68, the Court of Appeal expressly adopted a starting point of six years for possession of forged banknotes where the face value of the forged notes was substantial.

14.Power JA said at p 69H:

“We have been referred to a number of cases of which three appear to us to be of relevance. They are R v Ngan Chun-yee CACC 137/1984, R v Koo Pui CACC 469/1985 and R v Mo Chun-hung CACC 321/1986. These cases, we are satisfied, indicate that on a charge of forging or uttering, a proper starting point, where the face value of the forged notes is substantial, is six years.”

15.The appellant had in her custody and control with intent 609 pieces of counterfeit RMB 100-yuan notes with a face value of RMB 60,900 yuan (equivalent to about HK$70,000). The appellant admitted that she had acquired 800 pieces of counterfeit RMB 100-yuan notes for RMB 4,000 yuan. The appellant and her accomplices clearly intended to cash in this large quantity of counterfeit RMB 100-yuan notes by defrauding small businessmen in Hong Kong.

16.Recently, many shops in Hong Kong freely accept RMB from Mainland customers. It appears that counterfeit RMB banknotes are readily available and in large quantity over the border. With the more relaxed border control and the more frequent travels between Hong Kong and the Mainland by residents of both regions, such counterfeit RMB banknotes can easily find their way into Hong Kong. We are of the view that offences involving counterfeit RMB banknotes are likely to be more prevalent than offences involving counterfeit US dollar or HK dollar banknotes but, whether or not this is so, such offences are every bit as serious.

17.Counterfeit RMB banknotes undermine people’s confidence and businessmen must be protected from financial loss arising out of such counterfeit banknotes. Offences relating to control and custody of counterfeit RMB banknotes must be nipped in the bud. In particular, Mainlanders must be deterred from coming to Hong Kong to cash in counterfeit RMB banknotes.

18.The starting points adopted by the judge, in view of the substantial face value of the counterfeit RMB banknotes and the dominant role of the appellant, far from being manifestly excessive, can be regarded as lenient. The 32 months’ imprisonment imposed on the appellant is not a day too long.

19.The appeal against sentence is dismissed.

Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice for the Respondent.

Appellant: In person.