COURT: The defendant in this case had pleaded guilty to possession of a forged identity card on 30 November at the Eastern Magistracy and has been committed to this court for sentence. The reason that the date for sentencing took so long was because she had also been committed to this court for trial on a drugs charge but she was acquitted by the jury.
Prior to sentencing, a Newton inquiry was conducted. Basically, the charge was that she had with her a forged identity card on 22 April 2019 when she was crossing the border in her car and she was stopped by customs officers.
The Newton inquiry was based on the account given by the senior customs officer that when she asked the defendant for her identity card, the defendant had produced to her the forged identity card. And the defendant said that she did not produce the forged identity card and that the forged identity card was found inside her bag in a zipped compartment.
So a Newton inquiry was held. The senior customs officer was called and her account was that when the defendant produced the card to her, she had looked at the card and notice the date of birth. And she said it struck her because she was born in the 1970s as well, and the date of birth on the identity card was also in the 1970s. So she took a double look at the card and looked at the defendant and her reaction was one of surprise. And so she said, when under cross-examination, that is why she remembers this occasion very well despite the intervening years.
The defendant’s evidence however was that she had just gone through immigration and she had produced her real identity card. There was no reason for her to produce a forged identity card at that time. So she didn’t produce the forged identity card.
Now, having observed the officer giving evidence, I am impressed by the senior customs officer’s evidence. She was truthful and her evidence was reliable and made a lot of sense in why she remembered the occasion so well. So I have no trouble in accepting the truthfulness of her account.
I come to the conclusion that it was not intentional what the defendant did. She didn’t intend to produce a forged identity card to the officer but because of the fact that she had been stopped by customs and taken to the special counter, she was nervous obviously and in her haste, she had pulled out the wrong card.
So my conclusion is that after hearing the Newton hearing, that the card was indeed produced to the senior customs officer unintentionally and there was no question that she was trying to mislead the customs officer because as the defence put it, everything and all the information on the forged identity card was similar to the real one except for the date of birth.
As far as the personal background of the defendant is concerned, she is now aged 55 and she is a permanent resident of Hong Kong. She has always been a housewife, although she is or was a director of three companies. But according to the defendant, that was merely companies belonging to her late husband.
It was a fact that she had, at the time of the incident, been going through what we call menopausal symptoms and in fact that was what was accepted by the jury in the trial and in her quest for anti-aging formulas, she was on the mainland and was supplied with drugs which she thought were for anti-aging. And that is the reason behind her committing the drugs offence and her account was accepted by the jury.
So that is the background to this possession of forged identity card. I accept that the defendant was going through menopausal symptoms and was anxious about her age. I also accept her evidence that she had possessed the forged identity card for not any nefarious purposes apart from the fact that she wanted it to belie her age, her actual age. The age on the forged identity card was 12 years younger. And she gave an account in the Newton inquiry about how she had obtained the card for a few thousand dollars in Macau and at that time because she was anxious that her real age not to be exposed to her then boyfriend. I accept that account.
And one may say that perhaps she was being naïve but I can detect an underlying desperation in her evidence about her age.
This is a most unusual case with a most unusual background. It is not the common run-of-the-mill possession of forged identity card cases. In most of those cases, they relate to people who have no right to live in Hong Kong or to work in Hong Kong and they use the forged identity cards to hide their identity in order to get employment to further live in Hong Kong illegally.
The defendant is a permanent resident of Hong Kong. She has not worked. She is a lady of means and so her case is very much different from the general cases which come before me on forged identity cards. Therefore, I must say very strongly that this is not a case that should be used as a sentencing precedent for subsequent forged identity card cases. This is a very fact-sensitive sentence that I will impose.
The defendant did plead guilty in the lower court and she has a clear criminal record at that time. She, as I said, was a housewife and has all along been a law-abiding citizen. She was in custody, I think Mr Cheng mentioned, for about three weeks prior to her being granted bail and had been on bail all along until today and she had kept to all her bail conditions.
The charge itself is a serious one in Hong Kong and it is a problem that our immigration officers have been trying to address for so many years because of our porous borders dealing with illegal immigrants, illegal employment, etc. And so the court takes the view that it is a serious offence for possession of a forged ID card.
So a term of imprisonment is inevitable in cases of this nature when someone has a forged identity card. However, the previous cases on forged identity cards, as Mr Cheng pointed out, are really mainly dealing with people who have no right to be here or uses the card to get employment or further their living in Hong Kong illegally. So I agree with the observation that the normal sentences is not applicable in this case.
I had also considered whether a general deterrence is necessary. I don’t think a deterrence is necessary in this case because I do not think that the offence is likely to be repeated by the defendant. But whether a general deterrence is necessary, I am grateful to Mr Cheng for their further submissions on this point. And I am also persuaded by the fact that it is often not desirable for a first offender to be given a generally deterrent sentence.
And also in the case of Wade which was referred to by Mr Cheng, reported at [2016] 3 HKC 274, the Court of Appeal had observed that it has always been said that a suspended sentence should be made in exceptional circumstances only.
And the Court of Appeal in Hong Kong had also cited the judgment of the Court of Appeal in England and Wales in the case of R v Lowery and where at paragraph 7, the words expressed was:
“The expression ‘the exceptional circumstances of the case’ is of sufficiently wide construction so as to allow the court to take into account all relevant circumstances surrounding the offence, the offender and the background circumstances.”
The Court of Appeal then went on to say at paragraph 48:
“We are satisfied that in determining whether or not it is appropriate to suspend the sentence of imprisonment to be imposed on the respondent, notwithstanding the aggravating factors in the commission of the offence identified earlier.”
They went on to list out the factors, the Court of Appeal went on to list out the factors which they had taken into account, and at paragraph 49 the Court of Appeal said that they were satisfied that this was a case where they ought to impose a suspended sentence.
Now, the Court of Appeal had also observed earlier at paragraph 46 that:
“We are satisfied that the bald statement that the test for a court in deciding whether or not to suspend the sentence of imprisonment is one of ‘exceptional circumstances’ overstates the position in Hong Kong. That proposition is valid in respect of certain offences only, stipulated to be such by the courts. When dealing with other offences, the court must have regard to all the circumstances of the commission of that offence and that of the defendant in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment.”
Now, so having regard to what has been said by the Court of Appeal, I am persuaded that this is a case with its unusual facts. As I had observed, it is unlikely the defendant would repeat the offence, and the background facts and the background of the defendant I have decided that it is appropriate in this case therefore to suspend the sentence of imprisonment that I would order.
I consider then an appropriate starting point sentence for this offence should be one of 6 months’ imprisonment. The defendant did plead guilty and so in the ordinary circumstances would be entitled to one-third discount. However, because we had to hold a Newton inquiry, she is therefore not entitled to the full one-third discount and therefore I will reduce the sentence to one of 4½ months’ imprisonment.
As I said, I find that this is a case where the circumstances call for the sentence to be suspended and so I will order that the 4½ months’ imprisonment be suspended for a term of 2 years. And I am sure Mr Cheng and his junior will explain to the defendant what a suspended sentence means.