HKSAR v. Yu Xi Zhen

DCCC466/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 466 OF 2010

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Reasons for Sentence

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1.The defendant is charged with:

(1)  one count of attempt to tender counterfeit notes  or coins, contrary to sections 99(1)(a) and 159G  of the Crimes Ordinance, Cap. 200, (Charge 1);

(2)  one count of custody or control of counterfeit currency, notes or coins with intent, contrary to  section 100(1) of the Crimes Ordinance, Cap. 200, (Charge 2);

(3)  nine counts of tendering counterfeit notes or coins, contrary to section 99(1)(a) of the Crimes  Ordinance, Cap. 200, (Charges 3-11).

2.The defendant pleaded guilty to all charges and admitted the facts. She was convicted accordingly.

The Facts

3.The defendant tendered counterfeit Renminbi currency notes to purchase lowly-priced items at various Convenience Shops between 17^th and 19^th January 2010 (Charges 3-11). On each occasion, she tendered one counterfeit RMB100 note for the lowly-priced item, in total HK$118.20, and obtained genuine changes thereafter.

4.On 19 January 2010, the defendant aroused the suspicions of the cashier when she attempted to use a counterfeit RMB100 currency note for a bottle of medicated balm priced at HK$31.90 (Charge 1). The cashier sought assistance from the police.

5.The defendant was arrested and was found on her another 47 counterfeit RMB100 currency notes (Charge 2).

6.The defendant admitted under caution at the scene that those counterfeit currency notes in the sum of about $4,000 were found on the street in Lufeng of mainland a few days ago and she knew that they were counterfeit.

Mitigation

7.The defendant aged 26, a mainland resident entered Hong Kong on 16 January 2010 as a visitor. Clear record; married with 2 children aged 3 and 9 months respectively. The defendant was remorseful and committed the crime because of poverty. I note, however, the defendant was in possession of genuine currency, which she claimed belonged to herself, equivalent to over HK$5,000.

8.According to the defendant, she picked up the counterfeit notes on the street in the mainland and she came over with 57 pieces of counterfeit notes and the facts suggested she intended to use the same to obtain genuine changes in Hong Kong as much as possible. She committed the crime by herself and she was the sole culprit.

9.The Court of Appeal in The Queen v Chow Tin Wah, [1991] 1 HKLR 68, where the Court of Appeal expressly adopted a starting point of 6 years for possession of forged banknotes where the face value of the forged note was substantial. In that case, the appellant was in possession of 15, 763 pieces of forged $100 Hong banknotes.

10.In HKSAR v Hu Wanxia, CACC337 of 2008, the appellant and her accomplices were arrested and the police found 8 pieces of counterfeit RMB100 notes on the appellant, and later a further 601 pieces of counterfeit RMB100 notes were seized from the appellant’s luggage. The appellant pleaded guilty and was sentenced to a total of 32 months’ imprisonment. The Court of Appeal in dismissing the appeal against sentence commented that:

“In view of the substantial face value of the counterfeit renminbi banknotes and the dominant role of the appellant, the starting point of 2½ years and 4 years adopted by the trial judge, far from being manifestly excessive, can be regarded as lenient.”

11.The Court of Appeal in Hu Wanxia stated that:

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

Counterfeit renminbi 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 the counterfeit renminbi banknotes must be nipped in the bud.  In particular, mainlanders must be deterred from coming to Hong Kong to cash in counterfeit renminbi banknotes.”

12.I note the quantity involved in the defendant’s case is much less and I have also considered the facts and starting point adopted in HKSAR v Leung Wai Han, CACC102 of 2002, which is drawn to my attention by both parties.

13.I consider the appropriate starting point for the tender and attempt to tender counterfeit notes to be one of 18 months and the possession charge to be one of 30 months. The defendant pleaded guilty; entitled to one-third discount. I do not consider there to be any mitigating factor that calls for further deduction. However, after considering the totality consideration, I order the sentence to run partly concurrent and partly consecutive, making a total of 24 months’ imprisonment.

Order

Charge 1:	sentenced to 12 months;
Charge 3-11:	sentenced to 12 months and to compensate the victim of each charge HK$100, making a total of HK$900 to be deducted from her prisoner’s property, the sentences all to run concurrent with each other and Charge 1;
Charge 2:	sentenced to 20 months, 12 months of the term to be run consecutive with the other charges, making a total of 24 months.