R. v. Cheuk Chun Heung

HCMA000325/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.325 of 1996

------------------------

----------------------

Coram : Hon Leong, J. in Court

Date of hearing : 15 May 1996

Date of judgment : 15 May 1996

---------------------

J U D G M E N T

---------------------

1. The Appellant was stopped by a police officer in Tsuen Wan on 21st October 1995 and was asked to produce her proof of identity. She produced an identity card which had been reported lost by its holder some ten days ago. She was in possession of a China issue two way permit and was allowed to remain in Hong Kong until 29th December 1995. She was arrested and later charged for possession of an identity card relating to another person. She pleaded guilty to the charge and was sentenced to 15 months imprisonment. She appealed against sentence.

2. The magistrate in his reasons for sentence stated that the usual sentence for such an offence was 15 months imprisonment after a plea of guilty. He was aware of Shamim Nawaz [1994]1 HKCLR 195 and he was aware that the appellant was not an illegal immigrant nor an overstayer. However, he considered that the Appellant had produced the identity card when she was asked as proof of her identity and she pretended to be someone with the right to remain in Hong Kong.

3. Mr Chan for the Appellant submitted that on the authority of Shamim Nawaz, the sentence should be one of three months imprisonment where no link had been established between possession of the identity card and the offender's status in Hong Kong. There was no link in this case. In addition, the Appellant was pregnant with the baby due on 31st August 1996 and she had been serving her sentence since October 1995. There was strong humanitarian ground for the sentence to be reduced.

4. Miss Mahomed for the Crown agreed there was no link between the Appellant's possession of the identity card and her stay in Hong Kong and 15 months imprisonment in the circumstances of the case was manifestly excessive.

5. The test in Shamim Nawaz is whether there was a link between the offender's status in Hong Kong and possession of the identity card. This link may be established if possession of the identity card is for employment or to further his purpose in remaining in Hong Kong. The production of the identity card by the Appellant was not to further her remaining in Hong Kong since she was in any case entitled to be in Hong Kong until some two months later. This was insufficient to establish the necessary link. The case has to be dealt with as unconnected with immigration offences. The Appellant's baby will be due in August 1996 and she has been in prison for six months. In the circumstances, the sentence of 15 months is manifestly excessive. The appeal against sentence is allowed. The sentence of 15 months imprisonment is reduced to such a term as to enable the Appellant to be released immediately and forthwith repatriated back to China.

Representation:

Miss Yasmin Mahomed, S.C.C., for Crown

Mr Wilson Chan, inst'd by D.L.A., for Appellant