R. v. Josephine M Domingo

HCMA000156/1997

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.156 OF 1997

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Coram: Hon Gall in Court

Date of hearing: 8 May 1997

Date of judgment: 8 May 1997

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J U D G M E N T

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1. The appellant was convicted on her own plea of possession of an identity card relating to another person on 15th January 1997. She was sentenced to 15 months imprisonment.

2. The particulars of the offence were that on 12^th January 1997, she was found on board a vessel moored in Hong Kong harbour. A check was conducted by the police on her identity and she produced an identity card in the name of another. That card, when checked, was found to belong to a person who had left Hong Kong. She was then arrested.

3. Under caution, she alleged the genuine card holder, who was a friend, had left Hong Kong and gave her card to the appellant before leaving. The appellant had lost her card and kept the seized identity card for her own use.

4. I am referred by counsel to the case of R. v. Shamim Nawaz [1994] 1 HKCLR 195. In that case, Barnett, J. said :

"In my judgment, it matters not whether the offender is an illegal immigrant or an overstayer. The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card. The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive. If, however, the answer is no, and no link is established between the offender's status in Hong Kong and the identity card, the offence in relation to the identity card falls to be treated as an unconnected offence."

The learned judge in that appeal went on to hold that a period of three months in circumstances similar to the case before me would not be inappropriate.

5. In respect of the sentence passed upon the appellant, the magistrate in the court below said :

"It has been long settled that the appropriate sentence for this offence, upon a plea of guilty, is 15 months imprisonment."

From the reasons of sentence, it is obvious that it was not brought to the attention of the magistrate, as it ought to have been done, that there was no connection between the possession of the identity card by the appellant and the status of the appellant. I must, as Mr Cheung very fairly concedes, treat this as an offence which is unconnected with any other offence or the status of the appellant.

6. That being the case and following the law set out by Barnett, J., this appeal against sentence is allowed to such an extent as to permit the immediate release of the appellant.

Representation:

Mr W.S. Cheung, S.A.C.P., for Crown

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