HKSAR v. Cheung Yuk Lung

DCCC602/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 602 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me to one count of “counterfeiting notes with intent” (Charge 1) as well as another count of “having custody of counterfeit notes with intent” (Charge 2). He also pleaded guilty to a third count of “failing to produce proof of identity on demand” (Charge 3).

2.The facts of this case are indeed simple and straightforward.

3.The defendant was seen acting furtively in Sham Shui Po area in Kowloon by the police on 4 March 2013.  As a result, he was intercepted by a uniformed police officer who requested him for the production of the identity card for inspection.

4.The defendant, however, failed to produce his identity card and, as a result, he led the police officers to his residence at Room C, 1/F, 189 Tai Nan Street, Sham Shui Po, Kowloon, which is the place of the offence as described in the charge.

5.During the search for his identity card, the police officers found from his bed a pile of A4-sized and banknote-sized papers which were partly covered by a blanket.  The papers were later confirmed to be counterfeit banknotes, with a total face value of $18,820.

6.Upon body search, one counterfeit HK$500 banknote and four counterfeit HK$100 banknotes were also found on a wallet in the defendant’s left front trouser pocket.  The total face value of those banknotes was HK$900.

7.The defendant was arrested and under verbal caution he admitted to have counterfeited all the banknotes above using his inkjet colour printer in the premises.  He counterfeited the banknotes for his own use on transport and newspapers.

8.The police subsequently also seized from his premises a number of items, including one colour printer, one bottle of thinner and some silvery-coloured tapes, and one A4 paper which was partially cut out with banknote-sized holes and one A4 paper with shiny oil paint thereon.  There were also found cutter, ruler, brushes and iron.

9.In a subsequent video recorded interview, the defendant admitted that all the counterfeited banknotes found from the wallet and his premises were made by him using his tools in the premises as described above.  He reiterated that he made the counterfeits for his own use.

Criminal Records and Mitigation

10.The defendant is 36 years old.  He had secondary education level. 

11.In the past, he had 17 items of criminal records involving 27 previous convictions in the period between 1993 to 2012. He had no similar record involving counterfeiting notes. He had a similar record of “failing to produce proof of identity card on demand”. This is an offence which he was committed together with another two counts of “assaulting a police officer”. For all these three offences he was sentenced to 22 days’ imprisonment in the Magistracy in 2012.

12.The defendant was married but he was divorced in 2004.  They had a 12-year-old daughter. Following the divorce the daughter is now taken care by the mother of the defendant.

13.Mr Tse, during his mitigation, had produced to the court a letter of mitigation written by the defendant himself.  The defendant had expressed remorse in this letter and explained to me the reason why he foolishly committed the present offence.

14.He talked about the despair and the disappointment that he had gone through after knowing the marriage had broken down irretrievably and in 2008 he even attempted to commit suicide by jumping from the seventh floor of a building due to depression.  He survived but, as a result, he suffered serious bodily harm on his pelvis and on his legs and, although he was able to walk again, I was told by Mr Tse that he was actually hospitalised for four months in the hospital and he could not really recover from the physical injuries and he had been substantially impaired in his ability to work.

15.He now lives on the Comprehensive Social Security Allowance in the sum of $8,000 per month. His economic condition was further exacerbated after his father passed away last year in October due to cancer.

16.The defendant frankly told me that it was because under the pressure to get the money to cover all those funeral expenses of his father, he made a foolish decision to commit this offence without considering the consequences to his mother and to his daughter.

17.The defendant urged me to consider his plight and to pass a lenient sentence so that he can continue to take care of his mother and his daughter.

18.I am indebted to both counsel of the prosecution, Miss Ko, and also Mr Tse, who had placed before me a number of authorities, especially on “counterfeiting notes”.

19.In passing the sentence, I have considered all these authorities and the submission made on behalf by Mr Tse.

20.Mr Tse had acknowledged that “counterfeiting notes” and “the custody of counterfeiting notes” are, of course, very serious offences but he pointed out that in the present offence, the defendant’s scale of the offence is small and is far from sophisticated.  He was a loner and the face value involved in the first charge is only some $18,000 and in Charge 2 is only $900 and the quality of the counterfeiting notes after the examination by the government chemist was also said to be of very low quality.

21.He therefore urged the court to follow the authority in the past and to consider a starting point between 3 to 4 years and he also urged the possibility of imposing the sentence concurrently for all these offences.

Sentencing Considerations

22.Each of the offence of making counterfeited notes or having them in the custody, intending to pass or tender them as a genuine note, should carry a maximum of 14 years’ imprisonment on conviction in the indictment.

23.It is, therefore, fair to say that these offences are very serious offences and that deterrent sentence are usually called for.

24.There are no sentencing guidelines, however, for this kind of offence laid down by the Court of Appeal.

25.In the recent case HKSAR v Hu Wanxia, CACC 337/2008, the Court of Appeal has said that a starting point of 6 years is said to be appropriate for this type of offence where the face value is of a significant sum.  In that case, according to the facts, it involved, as it were, 800 fake RMB100 banknotes.  The face value concerned was about RMB80,000.  The Court of Appeal commented that the starting point adopted by the district judge below, which was 4 years, should be regarded as lenient.

26.In another case HKSAR v Wong Hoi Yat, Andy and others [2006] 3 HKLRD 150, the Court of Appeal had said that in determining the proper sentence, a number of factors should be considered, including:-

(1) the scale of the manufacturing operations;

(2) the quantity, value and the degree of the sophistication of the counterfeited notes;

(3) the nature and the efficiency of the paraphernalia;

(4) the length of the time for which the offences have been carried on; and

(5) the relevant background of the individual defendant.

27.In the same case, it had also mentioned in paragraph 37, which is also relied by Mr Tse, that in the past when there were cases where the face value of the counterfeiting notes was only about a few tens of thousands of Hong Kong dollars, the court in Hong Kong had adopted a starting point between 3 to 4 years.  (See HKSAR v Lam Wai Ming, CACC 44/2004.)

28.I have carefully considered those cases which have been submitted to me.  All the facts of the case are obviously different. 

29.I have also considered the potential of making of counterfeiting notes when the defendant had possessed the knowledge and the know-how to produce counterfeiting notes, even though by primitive tools at his home.

30.I was considering whether the fact that there was only a relatively less amount of value of counterfeiting notes seized in this case was, in fact, relevant when there is always the potential for the defendant to produce many much more of those notes whenever he found it necessary. In the end, I declined to depart from the usual practice adopted by the court, as I am of the view that it would be unfair to depart from the prevailing sentence in relation to counterfeiting notes involving relatively less value.

31.Also, I have paid particular attention to the reason why the defendant committed the present offence, his own personal background and his admission to the police that he only produced those fake banknotes for his own daily use on transport.

32.In the end, for Charge 1, I would adopt a starting point of 3½ years. 

33.The defendant pleaded guilty and for which he is entitled to the usual discount of one-third.

34.Therefore, for Charge 1, the defendant shall receive a sentence of 28 months’ imprisonment.

35.For Charge 2, I would use 3 years as the starting point and, after giving the one-third discount, the sentence is reduced to 24 months.

36.The sentences on both Charge 1 and Charge 2 shall run concurrently.

37.For Charge 3, I would simply impose a fine of HK$500.  This sum has to be paid within 14 days from today, failing which 7 days’ imprisonment will be imposed, which is consecutive to his sentences on Charge 1 and Charge 2.