HKSAR v. Sarfraz

HCMA 270/2018

[2018] HKCFI 1945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 270 OF 2018

(ON APPEAL FROM KCCC 1348 OF 2018)

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J U D G M E N T

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1.The appellant pleaded guilty to an offence of “Possession of an identity card relating to another person” before Deputy Magistrate Leung Lai Yin (“the magistrate”).

2.The appellant now appeals against his sentence.

3.During plea and sentence, the appellant was represented by the Duty Lawyer Service.  He acts in person in this appeal.

4.The appellant admitted these facts before the magistrate. About 5:35 pm on 26 April 2018, a police officer stopped him for enquiry outside No 179 Ma Tau Wai Road, Kowloon.  Upon search, a Hong Kong Identity Card bearing the name “BURATHOKI Narayansing” was found in the appellant’s left back trouser pocket. Immigration Department later confirmed that it was a genuine Hong Kong Identity Card which was reported lost by its holder.

5.Later in the presence of an Urdu interpreter, the appellant claimed that he picked up the identity card near a rubbish bin placed at a location which he could not describe.

6.The appellant is 37 and has a clear record.  He remains in Hong Kong on the status of a non-refoulement claimant.

7.The magistrate has duly acknowledged there is no evidence showing that the appellant had used or produced the identity card found on him.  Following the sentencing guidelines laid down in HKSAR v Li Chang Li [2004–2005] HKCLRT 193, the magistrate adopted 18 months’ imprisonment as the starting point and reduced the sentence to 12 months to reflect the appellant’s timely guilty plea.

8.In the appeal hearing, the appellant first claimed his innocence.  He alleged that he was told by his counsel to plead guilty.  He merely picked up the identity card from a rubbish bin and was intending to turn it in.  He was stopped by a police officer before he could do so.  He also asked for leniency claiming that his counsel had advised him of a shorter sentence.

9.I have explained to the appellant that this is his appeal against sentence.  If he wishes to appeal against his conviction by reversing his guilty plea, he could only do so on another occasion.

10.The sentence imposed by the magistrate is correct one.  I see no reason to disturb it.

11.The appellant should consider himself fortunate that the magistrate did not enhance the sentence based on his immigration status [1] .  “Possession of an identity card relating to another person” is an offence which has a serious detrimental effect on the community at large.  A genuine identity card is a key prerequisite for many commercial or financial transactions in Hong Kong.  Many serious crimes can be committed using someone’s identity card or just a copy of it. The magistrate had all the reasons to enhance the sentence and should have perhaps done so.

12.Based on the reasons stated above, the appeal is dismissed.

Mr Ivan Cheung, SPP (Ag) of the Department of Justice, for the respondent

The appellant appeared in person