HKSAR v. Ng Chi Yuen

DCCC 86/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 86 OF 2015

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REASONS FOR SENTENCE
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1.The defendant pleaded guilty to four charges relating to counterfeit notes, namely one charge of counterfeiting notes with intent (Charge 1); one charge of having custody or control of counterfeiting materials and implements with intent (Charge 2); and two charges of passing or tendering a counterfeit note (Charges 3 and 4), all of the aforesaid charges are brought under the Crimes Ordinance, Cap 200. 

2.The facts are relatively simple.  On 11 May 2014, at a shop in Tin Shui Wai the defendant used a fake HK$100 note to purchase an ice-cream which was worth HK$14 and received the change (Charge 3).  On the following day, again in Tin Shui Wai he used another fake HK$100 note to pay for taxi fare of HK$18.50 and received the change (Charge 4).  Later investigation revealed that between 28 March and 20 June 2014, a total of fifty fake HK$100 notes (including the two notes mentioned above) were surfaced mainly from Tin Shui Wai area.  All those fake banknotes were made by inkjet printing method and were devoid of any security features.  Subsequent investigation showed that they were made by the defendant (Charge 3).  On 9 June 2014, a police party came to the defendant’s residence in a public housing estate in Tin Shui Wai for a house search.  As no one answered the door, the police party forced in.  There, they found the defendant and his girl friend as well as the various items particularised in Charge 2 which, the defendant subsequently admitted, were materials and implements for making counterfeit notes.  Besides, there were also a fake HK$100 note and a fake HK$500 note in the premises and a piece of paper with a simulated “security window thread” lying on the ground floor of the housing estate (Charge 2).  The defendant subsequently admitted, among other things, that it was him who threw the said piece of paper out of the window when the police were breaking in and that he also damaged the hard disk of his computer. 

Antecedence and criminal records

3.The defendant is aged 38.  He is educated up to Form 5.  He had worked as a water and electrical technician after leaving school but was unemployed since the end of 2013.  He had 9 previous, most of them were drug related and none of them are similar to the present offences. 

Mitigation

4.Mr Fung who acts for the defendant informed the court that the defendant committed the present offence out of financial straits as a result of the depression of the defendant’s girl friend, her kidney problems and her accidental pregnancy.  Adding to their woes, the defendant lost his employment because he had to spend time looking after her.  Out of stupidity, the defendant committed the present offences to raise money.  Mr Fung recognized that the aforesaid could only explain but not excuse the defendant’s criminal conduct and accepted that the only mitigating factor is the defendant’s timely plea. Mr Fung placed before me three mitigation letters written by the defendant, his parents and his girl friend pleading for leniency. 

5.Mr Fung also brought the attention of this court to HKSAR v Cheung Yuk Lung (DCCC 602/2013) which was also a case concerning counterfeit notes.

Sentencing authorities

6.Offences involving counterfeit notes are serious.  This can be seen from the fact that the offences which the defendant committed all carry a maximum sentence of 14 years imprisonment on indictment.  As this type of offences would not only adversely affect the integrity of the financial market, but also cause economic harm to innocent people, deterrent sentences are usually called for: see HKSAR v Li Ho Yin (CACC 128/2013).

7.The Court of Appeal has not laid down any tariff for offences involving counterfeit notes.  Sentencing considerations include the scale of the manufacturing operation, the quantity, value and degree of sophistication of the counterfeit copies, the nature and efficacy of the paraphernalia, the length of time for which the offences had been carried on and the role(s) and background of individual defendants: see HKSAR v Wong Hoi Tat & Others [2006] 3 HKLRD 150.

8.The following serves as examples how the sentencing considerations work in specific cases:-

(i) in The Queen v Ngan Chun Yee & Others (CACC 137/1984), the accused was in possession of a hundred fake HK$1,000 notes. The Court of Appeal was of the view that six years’ imprisonment is the correct starting point;

(ii) in HKSAR v Leung Wai Han (CACC 102/2002), the accused faced two charges of having custody or control of counterfeiting notes with intent, one charge of possession of an identity card relating to another person and one charge of possession of a dangerous drug. Regarding the two charges involving counterfeit notes, the first one was about eleven fake $100 notes and a fake $20 note. The second one was about twenty-two fake $100 notes. The starting point of 2½ years’ imprisonment for each of these charges, which were reduced by 40% on each to 18 months’ imprisonment to reflect the guilty pleas and the assistance of the accused to the police which had led to the arrest and charging of another defendant, were upheld on appeal;

(iii) in HKSAR v Li Tsz Chung (CACC 312/2011 & CACC 314/2011), the Court of Appeal said that the starting point of 2½ years’ imprisonment is suitable for an offence of making two counterfeit HK$500 notes.

(iv) in HKSAR v Li Ho Yin, ante, the accused used one fake HK$100 note and was found in possession of another twenty-six fake HK$100 notes, all of which were of low quality. The accused had several previous criminal records and had just been released from prison for a similar offence when he committed the case in question. The Court of Appeal considered that the appropriate starting points should be 3 years’ and 3½ years’ imprisonment respectively; and

(v) in HKSAR v Cheung Yuk Lung, ante, the starting point of 3½ years was adopted for a charge of making counterfeit notes (with a face a value of HK$18,000) and the starting point of 3 years was adopted for a charge of having custody of counterfeit notes (with a face value of HK$900).

Sentence

9.Applying the above case authorities to the present case, as regards the counterfeits themselves, I have inspected them in court.  I find that although they are not of high quality, they could easily pass off as real ones unless one looks closely at them.  This is supported by the fact that the defendant was able to use two of the fake HK$100 notes on two occasions (Charges 3 and 4) and also the fact that a total of fifty fake HK$100 surfaced during the relevant period of time.  As regards the scale and sophistication of the defendant’s manufacturing operation and the nature and efficacy of the paraphernalia, I have looked at the scene and exhibit photographs taken by the police.  I find that the defendant’s operation was a small one and that the tools he used were primitive.  From the evidence, the defendant worked alone.  The total value of all the counterfeit notes seized was HK$5,600.  I have not ignored the fact that the defendant had the capacity to make more counterfeit notes.  Also, the evidence suggests that had he not been arrested, more counterfeit notes would have been made. 

10.Based on the above, the starting points I adopt are as follows:-

Charge 1: 3 years’ imprisonment

Charge 2: 3½ years’ imprisonment

Charge 3: 2½ years’ imprisonment

Charge 4: 2½ years’ imprisonment

11.After reduction of the customary one-third discount for plea, the sentences of the individual charges are as follows:

Charge 1: 24 months’ imprisonment

Charge 2: 28 months’ imprisonment

Charge 3: 20 months’ imprisonment

Charge 4: 20 months’ imprisonment

12.For totality, having regard to the criminality of the offences and the defendant’s background and mitigation, I order that the sentences of Charges 1, 3 and 4 are to run concurrently to each other but that 2 months of the aggregated sentence are to run consecutively to the sentence of Charge 2, thus making a total imprisonment term of 30 (28 + 2) months’ imprisonment.