HKSAR v. Dan Bahadur Adhikari

HCMA 300/2020

[2021] HKCFI 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 300 OF 2020

(ON APPEAL FROM TMCC 1261 OF 2020)

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Before:  The Honourable Madam Justice Toh in Court

Date of Hearing:  10 February 2021

Date of Judgment:  10 February 2021

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J U D G M E N T

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1.The Appellant in this case had pleaded guilty before the learned Magistrate to one count of custody of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 and he was sentenced to 12 months’ imprisonment. The Appellant lodged a review against the sentence before the learned Magistrate but it was unsuccessful. The Appellant now appeals against that sentence.

2.The facts are very simple in that, in the afternoon on 20 July last year, the Appellant was found sleeping at the Light Rail Transit station in Yuen Long.  A passer-by thought the Appellant was sick and so called for an ambulance.  However, the Appellant was uncooperative and police were summoned and upon a search, a HKID card in the name of a Chinese male surname Ho was found in the Appellant’s wallet.  Under caution, the Appellant said that he had picked up the card from a public toilet in Yuen Long about a week ago.  The investigation showed that the ID card was reported missing on 4 July 2020.      

3.The Appellant was represented by a duty lawyer and in mitigation, the duty lawyer said that the Appellant is 52 years old and is a street sleeper, and was on social welfare and is a Hong Kong resident. 

4.In the review, the Appellant was also represented by a duty lawyer who submitted that the Appellant was suffering from alcohol dependence syndrome and alcoholic hallucinosis since 2016, and counsel also pleaded that although the usual sentence is 12 months imprisonment, that did not apply to permanent resident in Hong Kong. 

5.The learned Magistrate considered the mitigation anew, and agreed that there is no specific tariff for Hong Kong permanent resident for this type of offence.         

6.The learned Magistrate also considered the medical report which was submitted on the review.  The learned Magistrate said that according to Dr Yip in his medical report, it was not mentioned that the Appellant’s psychiatric condition had led to his picking up the card and failing to surrender it. So the learned Magistrate had given due consideration to this new mitigation which was not advanced before her at the initial sentencing.  The learned Magistrate then considered cases relevant to this charge, in the end decided a 12-month imprisonment was the correct sentence and there was no reason to depart from that. 

7.Now in the appeal in this court, the Appellant is unrepresented.  In his homemade grounds, he tried to assert that he did not understand he was guilty in the last court case and wanted to renew his case again and to defend in the High Court.  The Appellant did originally lodge an appeal against conviction but wisely he abandoned it prior to today.  So this appeal is really in relation to his sentence. 

8.There is no doubt as Mr Ng correctly observed that the Appellant was properly represented in the court below, and had made an unequivocal plea of guilty, so there was no reason at all for the court to find there was any reason for him to “renew his case” in the appeal hearing.        

9.Possessing someone else’s identity card is a very serious offence in Hong Kong.  If the offender had used the card, it would merit an even higher sentence.  Hong Kong is a very crowded place and we have an illegal worker situation which is constantly taking up the time of our law enforcement officers.  So the court look with severity at people who possess identity cards relating to another person. There is no doubt that simple possession without use of an identity card, the correct sentence should be one of 12 months imprisonment.  This is supported by the authorities and there is no basis for the assertion that it only applied to illegal immigrants or foreign visitors.  The possession of someone else’s identity card is actually a mischief that should be stopped at its inception whether done by a foreigner or by a permanent resident. 

10.The Appellant in court asserts that he did not do anything wrong and that he did not use the card.  I have already explained to him that the charge is not that he had used the card, and as I have just pointed out, if he has used the card, the sentence would even be more severe. I have no doubt at all that this sentence is neither wrong in principle nor manifestly excessive.

11.So the appeal is dismissed. 

Mr Ng Wing Kit, SPP(Ag.) of the Department of Justice, for the Respondent

The Appellant acting in person