HKSAR v. Mohomed Rahoof Mohomed Sajahan

HCMA270/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 270 OF 2014

(ON APPEAL FROM TMCC 1084 OF 2013)

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J U D G M E N T

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1.On 8 April 2014, the appellant was convicted, after trial, of using a forged instrument (1^st charge)[1] and attempt to mislead a police officer (2^nd charge)[2]. Deputy Magistrate, Mr Hui Chun Sing, sentenced him to imprisonment for 21 months for the 1^st charge and 6 weeks for the 2^nd charge. Both terms to run concurrently. The appellant has served his sentence already. He appeals against the sentence of the 1^st charge.

Background

2.On 27 March 2013, the appellant was stopped and searched in the vicinity of Lau Fu Shan Main Street by a police officer.  He produced a recognizance form (‘Form 8’)[3] issued by the Immigration Department bearing the name of Mr Thabseer Mohamed Farhan.  The officer found that Mr Farhan was a wanted person.  The appellant then admitted that the Form 8 was not his.  His paper was at home.  The officer then arrested the appellant for the 2^nd charge. 

3.At his home, the appellant produced another Form 8 to the officer.  It bore the name of Mr Mohamed Naseer Mohamed Asmi.  The officer then took the appellant back to Tin Shui Wai Police Station for further investigation.  Later at the police station, the officer discovered that this From 8 was forged by photo substitution.  On further enquiry, the appellant admitted that this Form 8 was not his paper.  It was a copy of another’s paper.  His true name was Mr Mohomed Rahoof Mohomed Sjahan. He was then arrested for the 1^st charge.

4.In sentencing the appellant on the 1^st charge, the Deputy Magistrate stressed that the Form 8 was a proof of identity of a person who was temporarily allowed to stay in Hong Kong pending the result of his torture claim.  It was similar to an identity card.  In using the forged Form 8, the appellant concealed his identity and avoided apprehension for failure to report to the Director of Immigration.  The Deputy Magistrate adopted the principle for sentencing cases of using a forged identity card.  He sentenced the appellant to 21 months imprisonment.  He also sentenced the appellant to 6 weeks imprisonment for the 2^nd charge.  He ordered the sentences to be concurrent. 

5.Mr Robert Connelly, counsel for the appellant, put forward one ground of appeal—the sentence of the 1^st charge was too severe, contrary to authority and wrong in law.  Counsel pointed out that this appeal was not academic.  The length of the sentence might affect the appellant’s prospect of re-settlement if his torture claim was successful.  

6.Mr Connelly argued that the line of authorities from R v Shamim Nawaz[4], HKSAR v Chan Man Mo [5] and HKSAR v Li Chang Li [6] concerned defendants who possessed a forged identity card, or an identity card belonging to another, for the purpose of obtaining employment in Hong Kong.  However, the appellant was a holder of Form 8.  He was prohibited from taking employment in Hong Kong.  The forged Form 8 could not be used to obtain employment.  The appellant’s situation was not caught by the policy consideration of Li Chang Li. 

7.Mr Connelly further pointed out that the forgery by photo substitution was so crude that there could not be any threat to the integrity of the immigration and economic system of HKSAR.  He also criticized the Deputy Magistrate for passing different sentences to each charge albeit that the intent was the same—to conceal identity and avoid apprehension after failing to report to the Immigration Department.  

8.Mr Connelly argued that those authorities were not relevant.  Given the peculiar features of this case, the lesser sentence of about 3 months according to Chan Man Mo should be applied.  

9.Senior Public Prosecutor, Mr Nicholas Wong, argued that Form 8 was an important identity document.  The Director of Immigration allowed the appellant to remain in Hong Kong despite he had landed unlawfully[7] pending the outcome of his torture claim.  The appellant used the forged Form 8 to conceal his identity and avoided the consequence of failure to report to the Immigration Department. 

10.Mr Wong submitted that the tariff in Li Chang Li should be applicable.  The starting point upon a plea of guilty for the offence of possessing a forged identity card or identity card belonging to another should be imprisonment for 12 months.  It was meant to be a deterrent sentence. 

11.The actual production or use of a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong should bring the starting point to 15 months upon a plea of guilty.  [8]

Discussion

The status of Form 8

12.Under s 36(1) of the Immigration Ordinance, an immigration officer may grant recognizance to a person who is detained or liable to be detained under s 37ZK pending final determination of his torture claim.[9]  The document of recognizance is Form 8.  The claimant is released but is required to stay at an address and to report to the recognizance officer at intervals.  He would be liable to pay a sum to the Hong Kong Government on failure to report. 

13.The recognizance is only an alternative to detention.  A torture claimant remains an illegal immigrant or an overstayer as the case may be.  In law, he has committed an offence either under s 38(1)(b)—unlawful remaining[10] or under s 41—overstaying.[11]  

14.Form 8 is an administrative measure authorizing the torture claimant to remain in Hong Kong pending the outcome of his claim. It contains information which the Immigration Department can keep track of a torture claimant.  Form 8 is an important identity document comparable to an identity card. 

15.In my judgment, the fact that it cannot be used to seek employment would not reduce its importance.  It is the sole document authorizing him to remain in Hong Kong for the time being.  In sentencing offences concerning Form 8, the principles and policy consideration for sentencing offences concerning identity cards are therefore highly relevant.  I reject the argument of Mr Connelly in this aspect.  

The sentencing principles for offences relating to identity card

16.It is essential to trace the development of the sentencing principles set out in the authorities cited by the parties.

a  In Nawaz, the defendant was an overstayer who possessed an identity card belonging to another.  Barnett J held that it was not relevant whether the defendant was an illegal immigrant or an overstayer. If the possession of the identity card was for obtaining employment or further his remaining in Hong Kong.  Imprisonment for 15 months was not excessive.  If not, it should be dealt with unconnected to the immigration offence.  There was no finding by the magistrate as to the purpose of possession, the appeal was allowed and imprisonment for 3 months substituted.

b  Chan Man Mo was a case involving a defendant who was allowed to stay in Hong Kong for 3 months.  During this period, he was charged with possession of a forged identity card.  In sentencing, Madam Justice Bokhary ruled in gist that:[12]

i  The sentences for possession of a forged identity card and possession of an identity card belonging to another should be the same under similar circumstances. 

ii  There should be a distinction between defendants whose stay in Hong Kong was illegal and those who lawfully remained in Hong Kong. 

iii  For the former, imprisonment for about 15 months upon a plea of guilty was appropriate if the offence was committed for the purpose of obtaining employment or furthering his remaining in Hong Kong. 

iv  For the latter, imprisonment for 3 months upon a plea of guilty for simple possession of another’s identity card.  In addition,

1  If the defendant intended to use an identity card, forged or belonging to another, imprisonment of about 4 months upon a plea of guilty. 

2  If the defendant actually used an identity card, forged or belonging to another, imprisonment of about 12 months upon a plea of guilty.

c  In Li Chang Li, the defendant was a lawful visitor who possessed a forged identity card intending to use it for seeking employment.  The Court of Appeal reviewed the above two cases and held that Chan Man Mo had not adequately addressed the illegal worker problem in Hong Kong.  

d  Yeung JA[13] pointed out that during 2000—2004, the number of lawful visitors who were convicted of possession of forged identity cards increased by nearly eight times.  It was also common that Mainlanders worked illegally in Hong Kong. 

e  His Lordship stressed that cracking down on illegal workers was necessary and imperative.  Sufficiently deterrent sentences must be imposed for possession of forged identity card or an identity card belonging to another.  

f  It was in this context that the Court of Appeal set down the following guidelines:

i  For possession of an identity card, forged or belonging to another, imprisonment for 12 months upon a plea of guilty.  This applied to defendants lawfully staying in Hong Kong. 

ii  If the purpose of the use or production of an identity card, forged or belonging to another, was to conceal his identity, seek employment or further his stay in Hong Kong,[14] the starting point should be imprisonment for 15 months upon a plea of guilty.  

17.Mr Wong submitted that the principle set out in Li Chang Li was endorsed in the more recent case of HKSAR v Tran Viet Thank[15]. Cheung JA reiterated that the standard sentence of possession of a forged identity card or an identity card belonging to another should be imprisonment for 12 months even for defendants lawfully remaining in Hong Kong.  Where there was actual use of a forged identity card to seek employment, the sentence could be enhanced to 15 months.[16]

18.In all the authorities above, the courts considered the sentence of possession of an identity card, forged or belonging to another, for the purposes of seeking employment and/or furthering stay in Hong Kong.  

19.It is true that in Li Chang Li, the Court of Appeal emphasized on tackling illegal worker and the ensuing social problems in Hong Kong.  Their Lordships however stressed that possession of an identity card, forged or belonging to another, was a serious offence. Deterrent sentences were appropriate.  Their Lordships did not limit the guideline to defendants seeking employment only.  It applied equally to defendants who committed this offence for the purpose of concealing his identity or furthering his stay in Hong Kong. 

20.For the analysis above, I reject the argument of Mr Connelly that the guideline is meant for possession of a forged identity card with a view to seeking employment in Hong Kong.  

Whether the sentence was excessive

21.The appellant is a torture claimant.  At the time of the offence (27 March 2013) he had lost his Form 8 and his torture claim had been rejected.  The appellant was unable to recall accurately but thought that it was about 2012 that his claim was rejected.  He was scared and stopped reporting to the Immigration Department. 

22.The appellant produced a forged Form 8 to the police officer.  There could have been no other purpose than to conceal his identity and avoid repatriation given that his torture claim had been rejected. 

23.The fact that the Form 8 was a crude forgery is neither here nor there.  It is not a valid mitigating factor.  

24.Mr Connelly pointed out that in both charges, the appellant’s intent was the same—to conceal his identity.  However, the sentence was 21 months and 6 weeks respectively.  This disparity was not justified. 

25.The 1^st charge is using a forged instrument[17]. The maximum sentence is 2 years if tried summarily.[18]  In my view, the circumstances of this case support such a charge.  

26.The 2^nd charge is attempt to mislead a police officer[19]. The maximum sentence is imprisonment for 6 months. [20] Given that the appellant produced another’s Form 8 to the police officer, there is no other appropriate charge apart from misleading a police officer.  

27.While the intent of the appellant in both charges may be similar, the sentencing power of the Deputy Magistrate is limited in relation to the 2^nd charge.  That explains the disparity of the sentences.  The criticism of Mr Connelly is not valid.  

28.Mr Connelly submitted that if the appellant had explained to the police that he had lost his Form 8, the matter would be resolved without serious consequence.  The appellant stood to gain nothing from his actions.  

29.This argument must be assessed in relation to the time of the offence which was on 27 March 2013.  At that time, the appellant’s torture claim was rejected.  There was reasonable chance that he would be detained pending repatriation had he reported to the Immigration Department according to his Form 8.  In my view, the appellant had every reason to conceal his identity and further his stay in Hong Kong.  

30.The authorities discussed above are important references in assessing the sentence of the 1^st charge.  Given the nature of the forged instrument and the intention of the appellant, the guideline set down in Li Chang Li is applicable.  I do not think imprisonment for 21 months after trial is excessive for the 1^st charge.

Conclusion

31.The sentence of 21 months imprisonment for the 1^st charge is appropriate.  I dismiss the appeal.

Mr Nicholas Wong, SPP of the Department of Justice, for HKSAR

Mr Robert J Connelly, instructed by Ho Tse Wai, Philip Li & Partners, assigned by Bar Free Legal Service Scheme for the appellant