HKSAR v. Alam Parvez

HCMA 281/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 281 OF 2017

(ON APPEAL FROM WKCC NO 1068 OF 2017)

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J U D G M E N

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1.The appellant was one of five defendants variously charged with immigration offences who appeared before Mr Victor So Wai Tak, the acting Principal Magistrate, at West Kowloon Magistrate’s Court.

2.On 10 May 2017, the appellant pleaded guilty to a single offence of breach of condition of stay, contrary to section 41 and by virtue of Regulation 2(1)(a) of the Immigration Regulations, Cap 115, (Charge 4), and a single offence of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap 200, (Amended Charge 9).  He was sentenced to concurrent terms of imprisonment of 2 months on Charge 4 and 15 months on Charge 9. 

3.The appellant filed a Form 101 giving notice that he intended to appeal his conviction.  On the hearing date, the appellant abandoned his appeal against conviction and sought leave out of time to appeal his sentence.  Leave was granted.  At the conclusion of the hearing, I dismissed his appeal against sentence and these are my reasons for doing so. 

4.The facts giving rise to the two offences can be briefly stated as follows.  A warehouse located in the New Territories was the subject of a police operation investigating illegal employment.  On 28 February 2017, the appellant was observed working at the warehouse, packing goods.  He was intercepted and found on him was a staff card of the company that operated the warehouse together with an access card to the warehouse.  The police located at the warehouse an attendance record in relation to the appellant.  The police also retrieved from the company records at the warehouse photocopies of the appellant’s Hong Kong identity card, passport and job application.  The details on the photocopy identity card were found to be invalid. 

5.The appellant was arrested and cautioned.  He admitted that he had been working at the warehouse since 3 September 2014, that the photocopy of the false identity card was prepared by an unknown male for $2,000, and that he used the photocopy of the forged identity card to apply and obtain a job at the warehouse.  The immigration movement records of the appellant revealed that he entered Hong Kong as a visitor on 1 October 2012 with the prohibition that he not take up any work or employment whether paid or unpaid during his stay in Hong Kong.

6.The magistrate adopted a starting point of 3 months’ imprisonment on Charge 4, in line with the cases of HKSAR v Zhang Minghua [2006] HKCU 1625 (HCMA 547/2006, 22 September 2006, unreported), and HKSAR v Xie Yaohui [2006] HKCU 2152 (HCMA 1031/2006, 12 December 2006, unreported), which he reduced by one third for the appellant’s guilty plea to 2 months’ imprisonment.  As to Charge 9, the magistrate applied the sentencing guideline in HKSAR v Li Chang-li [2005] 1 HKLRD 864(HCMA 935A/2004), which concerned an offence of using a forged identity card to obtain employment.  The case of Li Chang-li concerns the offence of a forged identity card, contrary to section 7A of the Registration of Persons Ordinance, Cap 177.  A term of imprisonment of 12 months is the usual starting point on a plea of guilty for the offence of possession of a forged identity card.  However, if the offender had used the forged identity card in order to conceal his identity, work illegally or unlawfully extend the length of his stay in Hong Kong, a sentence of 15 months’ imprisonment on a plea of guilty will normally apply.  See HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903. 

7.I note that the appellant pleaded guilty to the offence of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance.  The head sentence for such an offence is imprisonment for 14 years.  The magistrate applied the sentencing guidelines for an offence contrary to section 7A of the Registration of Persons Ordinance which in the circumstances of the case was appropriate.  He noted that a proper sentence in such circumstances is one of 15 months’ imprisonment on a plea of guilty.  He correctly took the view that there was no difference in terms of culpability where a photocopy of a forged identity card is used.  He accordingly imposed a sentence of 15 months’ imprisonment on the appellant for this offence. 

8.The magistrate ordered that the terms of imprisonment on each offence run concurrently. 

9.I have considered the sentences imposed by the magistrate and his reasons for doing so and there is no basis for this Court to interfere with the decision of the magistrate.  The appeal against sentence is dismissed.

Mr Felix Tam, SPP of Department of Justice, for HKSAR

The appellant appeared in person