區域法院（刑事）Deputy District Judge Amy Chan15/10/2020[2020] HKDC 855
DCCC665/2019
A A
B B
DCCC 665/2019
C [2020] HKDC 855 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 665 OF 2019
F F
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G G
HKSAR
H v H
KHAN BILAL
I I
----------------------------
J J
Before: Deputy District Judge Amy Chan
K K
Date: 16 October 2020
L Present: Mr Cheung Man Fai, Jeremy, Counsel on fiat, for HKSAR L
Mr Young Ngai Man Simon, instructed by Choy Yung & Co,
M M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1] Trafficking in a dangerous drug (販運危險藥物)
O [2] Possession of a dangerous drug (管有危險藥物) O
[3] Possession of false instruments (管有虛假文書)
P P
[4] & [5] Having custody or control of counterfeit currency
Q notes (保管或控制偽製流通紙幣) Q
R R
-----------------------------------------
S S
REASONS FOR SENTENCE
T ----------------------------------------- T
U U
V V
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A A
B B
CHARGES
C C
1. The defendant is convicted upon his pleas and admissions of
D D
the facts of three charges, namely:-
E E
(a) Charge 1, trafficking of a dangerous drug, contrary to
F F
section 4(1)(a) and (3) of the Dangerous Drugs
G Ordinance, Cap 234; G
H H
(b) Charge 3, possession of false instruments, contrary to
I section 75(1) of the Crimes Ordinance, Cap 200; and I
J J
(c) Charge 5, having custody or control of counterfeit
K notes, contrary to section 100(1) of the Crimes K
Ordinance, Cap 200;
L L
M 2. By consent, Charge 2 and 4 are ordered to lie on the file and M
not to be proceeded with without the leave of the court.
N N
O THE FACTS O
P P
Charge 1 – Trafficking in dangerous drug
Q Q
3. On 14 March 2018 in the afternoon, defendant went to the
R R
Yau Tong Post Office (‘Post Office’) and asked to collect a registered
S parcel sent from Canada with the purported recipient named as “KHAN S
HAMZA” and addressed to “Rm 1301, Lei Hing House, Lei Yue Mun
T T
Estate”. The defendant was unable to provide the required mail
U U
V V
-3-
A A
B B
notification card that was sent to the addressee’s mail-box. The staff
C declined the defendant’s claim and so the defendant left the Post Office. C
D D
4. Feeling suspicious, the staff of the Post Office reported the
E incident to the police. Police investigated with the address of the recipient. E
The unit was rented by a 74 year’s old Chinese lady, i.e. not any person by
F F
the name “KHAN HAMZA”.
G G
5. On 15 March 2018 at about 4pm, the defendant returned to
H H
the Post Office and he produced a mail notification card to collect the
I parcel. Acting on police instruction, the staff asked the defendant to leave I
his mobile phone number behind and told the defendant that he would call
J J
him when the parcel became ready for collection.
K K
6. On 16 March 2018 in the morning, the staff of the Post Office
L L
called the defendant’s mobile number and told the latter that the parcel was
M ready for collection. The defendant attended the Post Office and following M
his producing the mail notification card, he collected the parcel. Police
N N
thereafter intercepted the defendant outside the Post Office. Upon a body
O search, police found inside the parcel a metal box containing one plastic O
bag containing 115 grammes of herbal cannabis.
P P
Q 7. CCTV footage at Lei Hing House on 15 March 2018 at Q
around 3:50pm depicted that the defendant took out a green mail
R R
notification card from Room 1301’s mailbox with the use of a stick.
S S
Charge 3 – False instruments
T T
U U
V V
-4-
A A
B B
8. Police then searched the defendant’s home. Upon search, the
C police found the following inside a cupboard in defendant’s bedroom:- C
D D
(i) Two copies of false HKID card printouts respectively
E in the name of “KHAN HAMZA” and “JACKSON E
Carl” (but both with the same HKID number);
F F
(ii) One false electric bill addressed to “KHAN HAMZA”
G purportedly issued by “CLP Power”; G
(iii) One false monthly statement addressed to “JACKSON
H H
CARL” purportedly issued by “Bank of China”.
I I
Charge 5 – Counterfeit banknotes
J J
K 9. The police seized a desktop computer in the defendant’s K
bedroom. Police later opened up the desktop computer case and they found
L L
24 counterfeit US$100 banknotes hidden in the case.
M M
ADMISSIONS
N N
O 10. Parcel collection and mail notification card O
(i) The defendant admitted taking the said mail
P P
notification card from the mailbox of Room 1301 of
Q Lei Hing House. His former co-worker, a man named Q
Saad, instructed him to get the said notification card at
R R
the mailbox and then to go to the Post Office to collect
S the said parcel. He was then arrested when he left the S
Post Office;
T T
U U
V V
-5-
A A
B B
(ii) Regarding the parcel, he claimed that he acted on
C Saad’s instructions. Saad promised to give him C
HK$500 as reward for getting the said parcel.
D D
E False documents E
(iii) The defendant admitted that Saad gave him all the false
F F
documents in case the staff of the Post Office asked
G him for verification during the parcel collection. G
H H
Counterfeit banknotes
I (iv) The defendant claimed that Saad gave him the 24 I
counterfeit banknotes as gifts. The defendant latter
J J
claimed that those counterfeit banknotes were rewards
K given by Saad for the defendant’s picking up a parcel K
earlier.
L L
M CRIMINAL RECORDS AND PERSONAL BACKGROUND M
N N
11. The defendant is now 23 years old. He has three convictions
O in two court appearances, namely for the offences of theft from vehicle and O
criminal damage in 2014 and theft in 2016. The defendant was put on
P P
probation on both occasions.
Q Q
12. The defendant’s father worked for 20 years as a security
R R
guard before retiring in Pakistan. His mother works as an Urdu interpreter
S in hospitals on an appointment basis. He has a younger sister who is S
studying at City University of Hong Kong and a young brother who is in
T T
primary school. His mother and sister know of the circumstances of his
U U
V V
-6-
A A
B B
offending; they have visited him regularly while he has been in pre-trial
C custody and are supportive of his rehabilitation. C
D D
13. The defendant finished his education in Hong Kong.
E Although he did not obtain high results on his DSE exams, he persevered E
in his studies. He obtained his Bachelor of Science in Information
F F
Technology for Business in October 2019 with Coventry University (a top-
G up programme run in collaboration with City University of Hong Kong). G
H H
14. From 2016 to 2018, the defendant held down several short-
I term positions in different restaurants. It was while working he met Saad I
and came under his negative influence. As a result of the current charges,
J J
the defendant has yet to find employment in his field of training. He very
K much hopes, once these charges are behind him, he can find a good job in K
the computer science/information technology field and begin to earn
L L
income to support his mother and two younger siblings.
M M
MITIGATION AND SENTENCE
N N
O 15. In sentencing, I take into consideration the whole O
circumstances of the case including its nature and facts, background of the
P P
defendant, as well as mitigation put forward on his behalf by Mr Young.
Q Q
DELAY
R R
S 16. Mr Young submitted that after the defendant was arrested in S
March 2018, the police laid charge on him 16 months until July 2019. The
T T
defendant has been unfairly prejudiced in that he has been denied the
U U
V V
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A A
B B
benefits and protection under section 109A of the Criminal Procedures
C Ordinance, Cap 221. There is no reason why the police could not have C
st
charged him before his 21 birthday on 3 June 2018.
D D
E 17. Despite delay in prosecution being recognized as a possible E
mitigating factor that can be taken into account when sentencing. However,
F F
the real question whether there has been an unreasonable delay: see
G Secretary for Justice v Schmitt Charles Lee CAAR12/2006. G
H 18. According to the prosecution, due to the transnational element H
of foreign currency and dangerous drug, time had been spent by the police
I I
to look into the defendant’s computer to find out he contact of Saad; to
J contact the Interpol to find out the origin of the parcel; to check the J
authenticity of the counterfeit bank notes by the Commercial Crime
K K
Bureau and to seek legal advice from the Department of Justice.
L L
19. I am satisfied that the prosecution had not been at fault for the
M M
time spent between the arrest and the charges in March 2018 and July 2019.
N I find that delay has been caused by difficulties in investigating the N
offences committed by the defendant. In my view, in any event, the period
O O
of delay in the present case is reasonable in the circumstances.
P P
20. Furthermore, the defendant is 20 years and 9 months old when
Q he committed the offence. It is totally unrealistic for the police to lay Q
charges against the defendant within the three months’ time frame.
R R
S Charge 1 – Trafficking in dangerous drug S
T T
U U
V V
-8-
A A
B B
21. Mr Young submitted that it is well accepted that herbal
C cannabis is four times weaker than cannabis resin and accordingly a C
benchmark tariff sentence of four months’ imprisonment for 2,000
D D
grammes of herbal cannabis has been applied by the courts: HKSAR v Chor
E Lui [2001] 3 HKLRD 95, HKSAR v Butt Muhammad Gulzar [2020] HKCA E
597.
F F
G 22. The defence submitted a mitigation letter from Father John G
Wotherspoon where the defendant has indicated his willingness to help in
H H
the anti-drug campaign to warn people about the danger of collecting
I parcels for other people. The defendant would do this by writing articles I
for the website and by preparing a YouTube video.
J J
23. In view of the relatively small quantities of 115 grammes of
K K
herbal cannabis, for Charge 1, I adopt a starting point of 12 weeks. After
L giving a full one third discount for his guilty plea, the resulting sentence is L
8 weeks’ imprisonment. I give the defendant an extra 1 week off for his
M M
participation in the anti-drug campaign. The sentence is therefore 7 weeks.
N N
O
Charge 3 –Possession of false instrument O
P P
24. This offence carried a statutory maximum of 14 years’
Q imprisonment. Q
R R
25. The false instruments consisted of four pieces of paper: copies
S of two Hong Kong identity cards, a CLP Power electricity bill, and a Bank S
of China monthly statement. They were found inside a cupboard in the
T T
defendant’s bedroom. According to the defendant in his VRI statement,
U U
V V
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A A
B B
these false instruments were given to him by Saad to use in case the post
C office asked for more identification. C
D 26. Mr Young submitted to me a number of authorities in relation D
to the use of forged credit cards. I find that those authorities should not be
E E
used as comparable as there is no evidence that the seized false documents
F have actually been used for the application of credit cards. No evidence F
the defendant ever presented or used these documents to try to deceive or
G G
mislead anyone in March 2018.
H H
27. Of course, I do not lose sight of the risk of prejudice to the
I I
bank because had these documents been used undetected, the defendant
J and those to whom he passed the documents on could use them for J
deceitful purpose. I am looking at the inherent risk in the nature of the
K K
documents themselves and the detriment to the community resulting in
L their possible use. L
M M
28. For Charge 3, I would use 15 months as the starting point and,
N N
after giving the one-third discount, the sentence is reduced to 10 months.
O O
Charge 5 – Custody or control of counterfeit currency notes
P P
Q 29. The offence of having counterfeited notes in the custody, Q
intending to pass or tender them as a genuine note, should carry a
R R
maximum of 14 years’ imprisonment on conviction in the indictment.
S S
30. It is, therefore, fair to say that these offences are very serious
T T
offences and that deterrent sentence are usually called for.
U U
V V
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A A
B B
C 31. There are no sentencing guidelines as the circumstances of C
each case may vary tremendously. Counsel in mitigation has put forward
D D
4 sentencing examples for my reference.
E E
32. In HKSAR v Leung Wai Han CACC 102/2002, the defendant
F F
faced two charges of possessing forged Hong Kong notes in total amount
G of $3,320. The Court took 2.5 years starting point on each charge. G
H H
33. In HKSAR v Huang Yihao DCCC 236/2009, the defendant
I possessed counterfeit notes of CNY1300 to 1400. The court adopted a I
starting point of 2 years.
J J
K 34. In HKSAR v Ho Yin-fung DCCC 686/2009, an 18-year-old K
who made fake HK$10 bills and used 45 of them for bus fare. The court
L L
imposed a 200 hours’ community service order.
M M
35. In HKSAR v Borrill Charlotte Marie [2019] HKDC 1456, the
N N
defendant who was 20 years old, passed off counterfeit HK$500 to pay
O taxi driver. The court adopted a starting point of 18 months. O
P P
36. I have carefully considered these cases submitted to
Q me. There are no sentencing guidelines for this kind of offence. Every case Q
must depend on its own facts.
R R
S 37. In my view, it is true that the purported face value of 24 forged S
US$100 bank notes is relatively low. However, the use of counterfeit
T T
U U
V V
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A A
B B
currency undermines the confidence of Hong Kong currency system and
C Hong Kong as a financial city generally. C
D 38. I have had the advantage of having seen the banknotes. The D
prosecution had made ready a real US$100 bank notes for my comparison.
E E
I find that the counterfeited notes are highly sophisticated forgeries. They
F can be easily fool people if they were not alerted to their existence as F
forgeries. This is an important consideration in sentencing: HKSAR v
G G
Wong Hoi Yat, Andy and others [2006] 3 HKLRD 150, R v Yip Moon-kwan
H and others, Cr. App. 220 and 210 of 1994 H
I I
39. In the end, for Charge 5, I would adopt a starting point of 2.5
J years. After the plea, the defendant shall receive a sentence of 20 months’ J
imprisonment.
K K
L TOTALITY L
M M
40. The last question is totality. The three charges relate to three
N N
separate offences. I do note that all the offences were committed on
O
different occasions and can potentially be served consecutively. O
P P
41. Mr Young strongly urged the court to consider calling for
Q Detention Centre report before sentence. Q
R 42. In any other offences, the age of the offender was to have the R
result of persuading the court in adopting a different sentencing principle,
S S
namely from one of deterrence to that of rehabilitation. Yet, having
T considered the gravity of the offences, I am not satisfied that Detention T
Centre is sufficient punishment for the gravity of these offences, or
U U
V V
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A A
B B
sufficient deterrent for other youngsters who might be tempted to commit
C the same. C
D 43. Besides, the defendant is not of clear record. He had been put D
under probation on two previous occasions. He did not grasp the
E E
opportunities to reform himself but to commit crimes of this serious nature.
F F
44. I take the view that these offences were so serious that a
G G
sentence of imprisonment is the only option available. If I call for reports,
H
it would only raise false hopes to the defendant. H
I 45. In R v Au Ka Fai and Anor [1989] 1 HKLR147, it was I
emphasized that if the court concludes that a sentence of imprisonment is
J J
the only realistic option, it should not call for reports.
K K
46. Mr Young also urged me to consider suspending the sentence.
L I do not consider there exists any sufficient special circumstances which L
justify this course of action.
M M
N 47. Having said that, however, I am most impressed that despite N
being arrested in March 2018, the defendant demonstrated his
O O
determination to excel himself by continuing with his study and obtained
P his Bachelor of Science in Information Technology for Business in P
October 2019 with Coventry University. Even what the defendant had
Q Q
committed are serious, on this matter, a lenient view is justified so that the
R defendant can reunite with his family and to turn over a new leaf. R
S 48. I consider that the overall total sentence of 20 months’ S
imprisonment is sufficient in this case for this defendant. I order all
T T
U U
V V
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A A
B B
sentences to be run concurrently, and the final sentence will be one of 20
C months’ imprisonment. C
D D
E E
F F
( Amy Chan )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 665/2019
C [2020] HKDC 855 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 665 OF 2019
F F
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G G
HKSAR
H v H
KHAN BILAL
I I
----------------------------
J J
Before: Deputy District Judge Amy Chan
K K
Date: 16 October 2020
L Present: Mr Cheung Man Fai, Jeremy, Counsel on fiat, for HKSAR L
Mr Young Ngai Man Simon, instructed by Choy Yung & Co,
M M
assigned by the Director of Legal Aid, for the defendant
N N
Offence: [1] Trafficking in a dangerous drug (販運危險藥物)
O [2] Possession of a dangerous drug (管有危險藥物) O
[3] Possession of false instruments (管有虛假文書)
P P
[4] & [5] Having custody or control of counterfeit currency
Q notes (保管或控制偽製流通紙幣) Q
R R
-----------------------------------------
S S
REASONS FOR SENTENCE
T ----------------------------------------- T
U U
V V
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A A
B B
CHARGES
C C
1. The defendant is convicted upon his pleas and admissions of
D D
the facts of three charges, namely:-
E E
(a) Charge 1, trafficking of a dangerous drug, contrary to
F F
section 4(1)(a) and (3) of the Dangerous Drugs
G Ordinance, Cap 234; G
H H
(b) Charge 3, possession of false instruments, contrary to
I section 75(1) of the Crimes Ordinance, Cap 200; and I
J J
(c) Charge 5, having custody or control of counterfeit
K notes, contrary to section 100(1) of the Crimes K
Ordinance, Cap 200;
L L
M 2. By consent, Charge 2 and 4 are ordered to lie on the file and M
not to be proceeded with without the leave of the court.
N N
O THE FACTS O
P P
Charge 1 – Trafficking in dangerous drug
Q Q
3. On 14 March 2018 in the afternoon, defendant went to the
R R
Yau Tong Post Office (‘Post Office’) and asked to collect a registered
S parcel sent from Canada with the purported recipient named as “KHAN S
HAMZA” and addressed to “Rm 1301, Lei Hing House, Lei Yue Mun
T T
Estate”. The defendant was unable to provide the required mail
U U
V V
-3-
A A
B B
notification card that was sent to the addressee’s mail-box. The staff
C declined the defendant’s claim and so the defendant left the Post Office. C
D D
4. Feeling suspicious, the staff of the Post Office reported the
E incident to the police. Police investigated with the address of the recipient. E
The unit was rented by a 74 year’s old Chinese lady, i.e. not any person by
F F
the name “KHAN HAMZA”.
G G
5. On 15 March 2018 at about 4pm, the defendant returned to
H H
the Post Office and he produced a mail notification card to collect the
I parcel. Acting on police instruction, the staff asked the defendant to leave I
his mobile phone number behind and told the defendant that he would call
J J
him when the parcel became ready for collection.
K K
6. On 16 March 2018 in the morning, the staff of the Post Office
L L
called the defendant’s mobile number and told the latter that the parcel was
M ready for collection. The defendant attended the Post Office and following M
his producing the mail notification card, he collected the parcel. Police
N N
thereafter intercepted the defendant outside the Post Office. Upon a body
O search, police found inside the parcel a metal box containing one plastic O
bag containing 115 grammes of herbal cannabis.
P P
Q 7. CCTV footage at Lei Hing House on 15 March 2018 at Q
around 3:50pm depicted that the defendant took out a green mail
R R
notification card from Room 1301’s mailbox with the use of a stick.
S S
Charge 3 – False instruments
T T
U U
V V
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A A
B B
8. Police then searched the defendant’s home. Upon search, the
C police found the following inside a cupboard in defendant’s bedroom:- C
D D
(i) Two copies of false HKID card printouts respectively
E in the name of “KHAN HAMZA” and “JACKSON E
Carl” (but both with the same HKID number);
F F
(ii) One false electric bill addressed to “KHAN HAMZA”
G purportedly issued by “CLP Power”; G
(iii) One false monthly statement addressed to “JACKSON
H H
CARL” purportedly issued by “Bank of China”.
I I
Charge 5 – Counterfeit banknotes
J J
K 9. The police seized a desktop computer in the defendant’s K
bedroom. Police later opened up the desktop computer case and they found
L L
24 counterfeit US$100 banknotes hidden in the case.
M M
ADMISSIONS
N N
O 10. Parcel collection and mail notification card O
(i) The defendant admitted taking the said mail
P P
notification card from the mailbox of Room 1301 of
Q Lei Hing House. His former co-worker, a man named Q
Saad, instructed him to get the said notification card at
R R
the mailbox and then to go to the Post Office to collect
S the said parcel. He was then arrested when he left the S
Post Office;
T T
U U
V V
-5-
A A
B B
(ii) Regarding the parcel, he claimed that he acted on
C Saad’s instructions. Saad promised to give him C
HK$500 as reward for getting the said parcel.
D D
E False documents E
(iii) The defendant admitted that Saad gave him all the false
F F
documents in case the staff of the Post Office asked
G him for verification during the parcel collection. G
H H
Counterfeit banknotes
I (iv) The defendant claimed that Saad gave him the 24 I
counterfeit banknotes as gifts. The defendant latter
J J
claimed that those counterfeit banknotes were rewards
K given by Saad for the defendant’s picking up a parcel K
earlier.
L L
M CRIMINAL RECORDS AND PERSONAL BACKGROUND M
N N
11. The defendant is now 23 years old. He has three convictions
O in two court appearances, namely for the offences of theft from vehicle and O
criminal damage in 2014 and theft in 2016. The defendant was put on
P P
probation on both occasions.
Q Q
12. The defendant’s father worked for 20 years as a security
R R
guard before retiring in Pakistan. His mother works as an Urdu interpreter
S in hospitals on an appointment basis. He has a younger sister who is S
studying at City University of Hong Kong and a young brother who is in
T T
primary school. His mother and sister know of the circumstances of his
U U
V V
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A A
B B
offending; they have visited him regularly while he has been in pre-trial
C custody and are supportive of his rehabilitation. C
D D
13. The defendant finished his education in Hong Kong.
E Although he did not obtain high results on his DSE exams, he persevered E
in his studies. He obtained his Bachelor of Science in Information
F F
Technology for Business in October 2019 with Coventry University (a top-
G up programme run in collaboration with City University of Hong Kong). G
H H
14. From 2016 to 2018, the defendant held down several short-
I term positions in different restaurants. It was while working he met Saad I
and came under his negative influence. As a result of the current charges,
J J
the defendant has yet to find employment in his field of training. He very
K much hopes, once these charges are behind him, he can find a good job in K
the computer science/information technology field and begin to earn
L L
income to support his mother and two younger siblings.
M M
MITIGATION AND SENTENCE
N N
O 15. In sentencing, I take into consideration the whole O
circumstances of the case including its nature and facts, background of the
P P
defendant, as well as mitigation put forward on his behalf by Mr Young.
Q Q
DELAY
R R
S 16. Mr Young submitted that after the defendant was arrested in S
March 2018, the police laid charge on him 16 months until July 2019. The
T T
defendant has been unfairly prejudiced in that he has been denied the
U U
V V
-7-
A A
B B
benefits and protection under section 109A of the Criminal Procedures
C Ordinance, Cap 221. There is no reason why the police could not have C
st
charged him before his 21 birthday on 3 June 2018.
D D
E 17. Despite delay in prosecution being recognized as a possible E
mitigating factor that can be taken into account when sentencing. However,
F F
the real question whether there has been an unreasonable delay: see
G Secretary for Justice v Schmitt Charles Lee CAAR12/2006. G
H 18. According to the prosecution, due to the transnational element H
of foreign currency and dangerous drug, time had been spent by the police
I I
to look into the defendant’s computer to find out he contact of Saad; to
J contact the Interpol to find out the origin of the parcel; to check the J
authenticity of the counterfeit bank notes by the Commercial Crime
K K
Bureau and to seek legal advice from the Department of Justice.
L L
19. I am satisfied that the prosecution had not been at fault for the
M M
time spent between the arrest and the charges in March 2018 and July 2019.
N I find that delay has been caused by difficulties in investigating the N
offences committed by the defendant. In my view, in any event, the period
O O
of delay in the present case is reasonable in the circumstances.
P P
20. Furthermore, the defendant is 20 years and 9 months old when
Q he committed the offence. It is totally unrealistic for the police to lay Q
charges against the defendant within the three months’ time frame.
R R
S Charge 1 – Trafficking in dangerous drug S
T T
U U
V V
-8-
A A
B B
21. Mr Young submitted that it is well accepted that herbal
C cannabis is four times weaker than cannabis resin and accordingly a C
benchmark tariff sentence of four months’ imprisonment for 2,000
D D
grammes of herbal cannabis has been applied by the courts: HKSAR v Chor
E Lui [2001] 3 HKLRD 95, HKSAR v Butt Muhammad Gulzar [2020] HKCA E
597.
F F
G 22. The defence submitted a mitigation letter from Father John G
Wotherspoon where the defendant has indicated his willingness to help in
H H
the anti-drug campaign to warn people about the danger of collecting
I parcels for other people. The defendant would do this by writing articles I
for the website and by preparing a YouTube video.
J J
23. In view of the relatively small quantities of 115 grammes of
K K
herbal cannabis, for Charge 1, I adopt a starting point of 12 weeks. After
L giving a full one third discount for his guilty plea, the resulting sentence is L
8 weeks’ imprisonment. I give the defendant an extra 1 week off for his
M M
participation in the anti-drug campaign. The sentence is therefore 7 weeks.
N N
O
Charge 3 –Possession of false instrument O
P P
24. This offence carried a statutory maximum of 14 years’
Q imprisonment. Q
R R
25. The false instruments consisted of four pieces of paper: copies
S of two Hong Kong identity cards, a CLP Power electricity bill, and a Bank S
of China monthly statement. They were found inside a cupboard in the
T T
defendant’s bedroom. According to the defendant in his VRI statement,
U U
V V
-9-
A A
B B
these false instruments were given to him by Saad to use in case the post
C office asked for more identification. C
D 26. Mr Young submitted to me a number of authorities in relation D
to the use of forged credit cards. I find that those authorities should not be
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used as comparable as there is no evidence that the seized false documents
F have actually been used for the application of credit cards. No evidence F
the defendant ever presented or used these documents to try to deceive or
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mislead anyone in March 2018.
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27. Of course, I do not lose sight of the risk of prejudice to the
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bank because had these documents been used undetected, the defendant
J and those to whom he passed the documents on could use them for J
deceitful purpose. I am looking at the inherent risk in the nature of the
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documents themselves and the detriment to the community resulting in
L their possible use. L
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28. For Charge 3, I would use 15 months as the starting point and,
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after giving the one-third discount, the sentence is reduced to 10 months.
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Charge 5 – Custody or control of counterfeit currency notes
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Q 29. The offence of having counterfeited notes in the custody, Q
intending to pass or tender them as a genuine note, should carry a
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maximum of 14 years’ imprisonment on conviction in the indictment.
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30. It is, therefore, fair to say that these offences are very serious
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offences and that deterrent sentence are usually called for.
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C 31. There are no sentencing guidelines as the circumstances of C
each case may vary tremendously. Counsel in mitigation has put forward
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4 sentencing examples for my reference.
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32. In HKSAR v Leung Wai Han CACC 102/2002, the defendant
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faced two charges of possessing forged Hong Kong notes in total amount
G of $3,320. The Court took 2.5 years starting point on each charge. G
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33. In HKSAR v Huang Yihao DCCC 236/2009, the defendant
I possessed counterfeit notes of CNY1300 to 1400. The court adopted a I
starting point of 2 years.
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K 34. In HKSAR v Ho Yin-fung DCCC 686/2009, an 18-year-old K
who made fake HK$10 bills and used 45 of them for bus fare. The court
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imposed a 200 hours’ community service order.
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35. In HKSAR v Borrill Charlotte Marie [2019] HKDC 1456, the
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defendant who was 20 years old, passed off counterfeit HK$500 to pay
O taxi driver. The court adopted a starting point of 18 months. O
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36. I have carefully considered these cases submitted to
Q me. There are no sentencing guidelines for this kind of offence. Every case Q
must depend on its own facts.
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S 37. In my view, it is true that the purported face value of 24 forged S
US$100 bank notes is relatively low. However, the use of counterfeit
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currency undermines the confidence of Hong Kong currency system and
C Hong Kong as a financial city generally. C
D 38. I have had the advantage of having seen the banknotes. The D
prosecution had made ready a real US$100 bank notes for my comparison.
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I find that the counterfeited notes are highly sophisticated forgeries. They
F can be easily fool people if they were not alerted to their existence as F
forgeries. This is an important consideration in sentencing: HKSAR v
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Wong Hoi Yat, Andy and others [2006] 3 HKLRD 150, R v Yip Moon-kwan
H and others, Cr. App. 220 and 210 of 1994 H
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39. In the end, for Charge 5, I would adopt a starting point of 2.5
J years. After the plea, the defendant shall receive a sentence of 20 months’ J
imprisonment.
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L TOTALITY L
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40. The last question is totality. The three charges relate to three
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separate offences. I do note that all the offences were committed on
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different occasions and can potentially be served consecutively. O
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41. Mr Young strongly urged the court to consider calling for
Q Detention Centre report before sentence. Q
R 42. In any other offences, the age of the offender was to have the R
result of persuading the court in adopting a different sentencing principle,
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namely from one of deterrence to that of rehabilitation. Yet, having
T considered the gravity of the offences, I am not satisfied that Detention T
Centre is sufficient punishment for the gravity of these offences, or
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B B
sufficient deterrent for other youngsters who might be tempted to commit
C the same. C
D 43. Besides, the defendant is not of clear record. He had been put D
under probation on two previous occasions. He did not grasp the
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opportunities to reform himself but to commit crimes of this serious nature.
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44. I take the view that these offences were so serious that a
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sentence of imprisonment is the only option available. If I call for reports,
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it would only raise false hopes to the defendant. H
I 45. In R v Au Ka Fai and Anor [1989] 1 HKLR147, it was I
emphasized that if the court concludes that a sentence of imprisonment is
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the only realistic option, it should not call for reports.
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46. Mr Young also urged me to consider suspending the sentence.
L I do not consider there exists any sufficient special circumstances which L
justify this course of action.
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N 47. Having said that, however, I am most impressed that despite N
being arrested in March 2018, the defendant demonstrated his
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determination to excel himself by continuing with his study and obtained
P his Bachelor of Science in Information Technology for Business in P
October 2019 with Coventry University. Even what the defendant had
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committed are serious, on this matter, a lenient view is justified so that the
R defendant can reunite with his family and to turn over a new leaf. R
S 48. I consider that the overall total sentence of 20 months’ S
imprisonment is sufficient in this case for this defendant. I order all
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B B
sentences to be run concurrently, and the final sentence will be one of 20
C months’ imprisonment. C
D D
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F F
( Amy Chan )
Deputy District Judge
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