HKSAR v. Baljit Singh

CACC 17/2018

[2019] HKCA 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 17 OF 2018

(ON APPEAL FROM DCCC NO 328 OF 2017)

_______________

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 20 November 2019

Date of Judgment: 20 November 2019

________________

J U D G M E N T

________________

Introduction

1.On 10 October 2017, the applicant pleaded guilty before Deputy District Judge Amy Chan (the judge) to one charge of conspiracy to make false instruments, contrary to sections 71, 159A and 159C of the Crimes Ordinance, Cap 200, and sections 2 and 6 of the Criminal Jurisdiction Ordinance, Cap 461, (Charge 1), and one charge of taking employment while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, contrary to section 38AA(1) (a) and (2) of the Immigration Ordinance, Cap 115, (Charge 2). 

2.On 10 November 2017, the judge sentenced the applicant to a total of 31 months and 2 weeks’ imprisonment.

3.On 23 January 2018, the applicant applied for leave to appeal against sentence out of time.  The sole ground of appeal is that the applicant should be afforded a discount from his otherwise proper sentence in respect of assistance he has rendered to the authorities.

4.On 16 May 2018, the applicant applied for bail pending appeal before McWalters JA, who granted him bail on the basis that he was likely to have served all or most of his sentence by the time his appeal was heard.  There was no objection from the respondent to the application.

The brief facts

5.The brief facts of the case were that on 30 November 2015, the applicant surrendered to the Immigration Department for illegally remaining in Hong Kong and was released on a recognizance issued by the Immigration Department on condition that he not take up any employment, whether paid or unpaid.

6.On 6 December 2016, the applicant was observed working in a restaurant and was intercepted by Immigration officers.  A mobile telephone was seized from him.  An examination of the mobile telephone uncovered various images of forged Hong Kong identity cards.

7.The applicant admitted that the identity cards depicted in the images on his telephone were forged and the photograph of the person on these images belonged to the buyer of the card, rather than the actual owner of the card.  He explained that he was to pass the information to another person to make the forged identity cards.  He would then collect the forged identity cards once they were ready.  The forged identity cards would be sold to other non-refoulement claimants for job seeking in Hong Kong.  The cost of a forged identity card was about $4,500 each.  The applicant admitted that he performed this task on about four occasions from October to November 2016 and in return he was allowed to work at the restaurant earning around $1,500 per month.

The sentence

8.The judge in her sentencing remarks considered that the offences had a serious detrimental effect on the community and tarnished Hong Kong’s reputation for order and security.  She said that the making of forged Hong Kong identity cards caused damage to the integrity of the identity card system and allowed persons to use them for illegal purposes, such as taking up unlawful employment. She noted that this would deprive job opportunities to members of the community and adversely affect the economic structure and social order of Hong Kong.  She further noted that this was a syndicated crime with the applicant performing the role of a courier.

9.The judge adopted a starting point of 3 years and 6 months’ imprisonment on Charge 1 which she enhanced by 3 months for the fact that the applicant was a Form 8 recognizance holder at the time of the offence, but this was offset by a reduction of 3 months for the role played by the applicant in the criminal enterprise.  She then reduced the sentence by 25% for the applicant’s guilty plea on the first day of trial to 31 months and 2 weeks’ imprisonment.  As for Charge 2, she noted that the applicant had pleaded guilty to the offence on plea day and sentenced him to 15 months’ imprisonment in accordance with the tariff laid down in HKSAR v Usman Butt and Ors [2010] 5 HKLRD 452.  She ordered that the sentences of the two charges be served concurrently.

The leave application

10.As indicated at the outset of this judgment, no issue is being taken by the applicant as to the approach taken by the judge in sentencing him.  It was noted by the judge, that the applicant was assisting the authorities, and she considered it was appropriate that, depending on what transpired, the issue of any further reduction to his sentence for assistance rendered to the authorities could be raised on appeal.

11.In the meantime, the applicant has provided assistance to the authorities by making statements, detailing the involvement of others in this criminal enterprise.  It has resulted in the arrest and prosecution of various persons.  The applicant has given evidence in two sets of proceedings.  The respondent has acknowledged the assistance that the applicant has rendered to the authorities and accepts that he is deserving of a further reduction to his sentence. 

12.It follows from the foregoing that I grant the applicant leave to appeal against his sentence, and I also make an order that there be an expedited hearing of the appeal. 

Mr Pierre Lui, SPP, of the Department of Justice, for the respondent

Mr Andrew Bullett, instructed by Mohnani & Associates, assigned by the Director of Legal Aid, for the applicant