R. v. Shahid Nadeem and Another

HCMA000359/1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 359 OF 1994

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 19 July 1994

Date of delivery of judgment: 19 July 1994

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J U D G M E N T

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1. On 11th March 1994 at Tuen Mun Magistrates' Court, the Appellants pleaded guilty to various charges. They each pleaded guilty to using an identity card relating to another, to contravening a condition of stay, and to failing to produce proof of their identity on demand. In addition, the 1st Appellant pleaded guilty to misleading a police officer by giving false information. They were each sentenced to 6 months' imprisonment on the charge of using an identity card relating to another, to 3 months' imprisonment consecutive on the charge of contravening a condition of stay, and to a fine of $500 for failing to produce proof of their identity. In addition, the 1st Appellant was sentenced to 1 month's imprisonment consecutive for misleading a police officer. Accordingly, the 1st Appellant was sentenced to terms of imprisonment totaling 10 months' imprisonment in all, and the 2nd Appellant was sentenced to terms of imprisonment totaling 9 months' imprisonment in all. They now appeal against their sentences of imprisonment.

2. The Appellants are from Pakistan. The 1st Appellant was 22 when he was arrested. He came to Hong Kong with a friend who was to arrange a job for him in Korea. He was permitted to stay in Hong Kong for 3 months until 15th October 1993. The job in Korea did not materialise, and eventually his return air ticket expired. While he was waiting for a refund, his savings ran out. He therefore began to work at the laundry in Tuen Mun where he was subsequently arrested. To get that job, he produced an identity card in someone else's name. He worked at the laundry for 9 days before 2nd February 1994 when he was arrested. On the day of his arrest, he had no proof of identity on him when he was asked by a police officer to produce it, and he gave the police a false name.

3. The 2nd Appellant was 28 when he was arrested. He is married with two daughters. He claimed to have paid US$2,000 to an agent to obtain a visa for him to work in Korea and to find a job for him there. The agent disappeared. He had been permitted to stay in Hong Kong for 7 days on a tourist visa, but that had expired on 2nd September 1993. He had been working at the laundry for 5 days before 2nd February 1994 when he too was arrested. He too had produced an identity card in someone else's name to get the job, and he too had had, on the day of his arrest, no proof of identity on him.

4. In So Man King [1989] 1 HKLR 142, the Court of Appeal held that the "substantial element in sentencing" for the offences of remaining in Hong Kong unlawfully, the unlawful possession of identity cards, and the unlawful use of them, "is the unlawful presence in Hong Kong". The same is true for the offence of contravening a condition of stay if what the offender does is to remain in Hong Kong longer than he is entitled to. But different considerations apply to illegal immigrants from China (with whom So Man King was concerned), Vietnamese Boat People (to which two of the cases which the magistrate cited in his Reasons for Sentence applied, namely Bui Duc-thanh (MA 216/91) and Luong Manh-hung (MA 902/91)), and illegal immigrants and overstayers from elsewhere.

5. I deal first with the offence which the magistrate regarded as the most serious - namely, that of using an identity card relating to another. In Bashir Ahmed (MA 522/93), Leonard J. took the view that a sentence of 9 months' imprisonment was appropriate for a Pakistani overstayer with no previous convictions in Hong Kong, who had pleaded guilty to using the identity card of another person of the same ethnic origin as himself by producing it to the police. I took the same view in Mushtaw Ahmed (MA 926/93) in a case of a Pakistani who was not an overstayer at the time that he used the identity card, but who had pleaded guilty to using it to conceal the fact that he was about to become an overstayer. The misuse of identity documents is regarded as serious in Hong Kong. I cannot fault the magistrate for taking 12 months' imprisonment as his starting point.

6. I turn to the offence of contravening a condition of stay. The magistrate took into account the length of the overstay - 3½ months and 5 months respectively - and the fact that the Appellants had obtained work during their overstay. Again, I cannot fault the magistrate for taking 4 months' imprisonment as his starting point.

7. Finally, there is the offence of misleading a police officer to which the 1st Appellant pleaded guilty. Here, I find I do disagree with the magistrate. The magistrate said that the 1st Appellant lied to the police to enable him to continue staying in Hong Kong, and his culpability was accordingly comparable to charges of using someone else's identity card or giving false information to an immigration officer. I think it was much more likely that the 1st Appellant lied because he knew he could not produce his passport since that would show that he was an overstayer. Indeed, had the 1st Appellant thought about the matter for a moment, he would have realised that it was a story he could not persist in, because the name he gave was not the same as that on the identity card which he had shown his employers. My starting point therefore would have been 1 month's imprisonment, and not the 3 months' imprisonment which the magistrate took as his starting point.

8. The magistrate reduced his starting points from 12 months', 4 months' and 3 months' imprisonment - to take account of the Appellants' pleas of guilty and the other mitigating factors - to 9 months', 3 months' and 2 months' imprisonment, but looking at the sentences overall, he took the view that they should not in total exceed 10 months' imprisonment for the 1st Appellant and 9 months' imprisonment for the 2nd Appellant. He therefore reduced the sentences further to the extent which I have indicated. I think I would have approached the matter differently. Leaving aside the offence of misleading a police officer, I would have reduced the sentences on the other two charges to 9 months' and 3 months' imprisonment respectively, but I would have ordered them to be served concurrently with each other. They both arose out of the Appellants' desire to remain in Hong Kong after their permission to do so had expired, and to support themselves while they were in Hong Kong. However, since the magistrate reached the same result, albeit by a different route, I do not propose to interfere.

9. In relation to the charge of misleading a police officer, though, I would have reduced the starting point of 1 month's imprisonment to 21 days' imprisonment to reflect the 1st Appellant's plea of guilty and the other mitigating factors, and I would have ordered that sentence to be served concurrently with the sentences of imprisonment imposed on the other charges.

10. The effect of all this is as follows. I dismiss the 2nd Appellant's appeal, but at the risk of being accused of tinkering with the sentences imposed by the magistrate on the 1st Appellant, the 1st Appellant's appeal is allowed to the extent that the sentence of 1 month's imprisonment on the charge of misleading a police officer is set aside. A sentence of 21 days' imprisonment is substituted for it, but that sentence will be served concurrently with the sentence of 6 months' imprisonment for the offence of using someone else's identity card. Accordingly, like the 2nd Appellant, the 1st Appellant's sentences amount to 9 months' imprisonment in all.

Representation:

Mr. W.S. Cheung, S.C.C., for the Crown.

Appellants in person.