HKSAR v. Mok Wai To

HCMA001002/2000

HCMA 1002/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1002 OF 2000

(ON APPEAL FROM TWCC 2438/2000)

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Coram: Hon Beeson J in Court

Date of Hearing: 20 December 2000

Date of Judgment: 20 December 2000

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J U D G M E N T

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1. This Appellant appeals against his conviction and sentence on two charges. The first is Remaining in Hong Kong Without the Authority of the Director of Immigration after having Landed Unlawfully in Hong Kong, which is contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. The second charge is Possession of a Forged Identity Card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177.

2. The Appellant pleaded guilty to the second charge at trial and was sentenced to 15 months' imprisonment. On the first charge he pleaded not guilty, but was found guilty after trial and was sentenced by the Magistrate to 20 months' imprisonment. The sentences were ordered to run concurrently. Today the Appellant appeals against his conviction and sentence on the first charge, and against the sentence on the second charge.

3. The facts that appeared at the trial show that the Appellant was found on a construction site, an enquiry was made of him and he was asked for his identity card. He produced a card which was subsequently found to be forged and he told the police later, in a record of interview, how he had entered in Hong Kong. He said he initially came to Hong Kong with a two-way permit on 29 August 1998 to find a job, but had not been successful. His two-way permit, which had been issued in China, had expired for a month and at that time he was afraid he would be discovered and fined, so he sneaked back to his home town. He returned to Hong Kong on 28 May 2000, because he had bought a Hong Kong identity card in his home town as arranged by a snake-head. At that time, he told police, he sneaked into Hong Kong by boat from Hui Dong. He had kept the two-way permit with him when he returned from Hong Kong to his home town about December 1998; it was before the winter solstice, although he had forgotten the exact date. He returned to Shenzhen by boarding a Mainland goods vehicle delivering chickens in Sheung Shui, which had then gone back to Shenzhen.

4. These were the matters in the Record of Interview that were put before the Magistrate at the trial. There were objections to the admissibility of the interview that were argued before the court and the court found the evidence admissible. The Appellant's evidence at trial was that he had come to Hong Kong on his two-way permit, but had never left. He said he had not been working on the construction site where he had been found and had not handed over the forged identity card to the police officer, but that it had been planted on him by the officer. He told the court that he had bought the identity card and the construction safety card (which was also found on him) in the Mainland before coming to Hong Kong in August 1998, but was unable to explain why, if that was so, the safety card was dated 11 February 1999.

5. Today before me the Appellant reiterated his story about having come to Hong Kong in 1998 and never having left. He said he did have witnesses who could establish that he had stayed in Hong Kong for that period. He said he had a certificate from his wife certifying that he had not returned to his home town during the period since August 1998. He said that rather than his having purchased the site safety card and the construction site card, these were issued to him legitimately in Hong Kong and he had used them and kept them.

6. However, none of this material was given to the Magistrate at the time. The Appellant tells the court now that he did not want to cause Mr Chu Man Sing or Mr Chu Chi Shing, his alleged witnesses, any difficulties so had not called them at trial. He said that he had not told the Magistrate about the places that he had stayed, or about the rental arrangement that he had made during the period. Nor had he told the Magistrate about his having minor medical treatment at a private clinic during the period.

7. The Magistrate went through the evidence carefully at the trial and in her Statement of Findings made it quite clear that she considered that the Appellant had told lies in court or to the police. She did not accept that he had purchased the safety card before he came to Hong Kong in August 1998 and, given the evidence relating to the card, that is hardly surprising. She was satisfied that Appellant's explanation for his being in Hong Kong was fully and clearly set out in the Record of Interview which he had written out himself and on that basis she found him guilty of the first charge.

8. Having considered the evidence and having heard the Appellant's account of events today, I am satisfied that the Magistrate dealt with this matter correctly. I am satisfied that there was evidence before her which she accepted and on which she could find the Appellant guilty of the offence on charge 1.

9. The appeal in respect of charge 1 against the conviction is dismissed. In respect of the sentences, these appear to be proper sentences for the offences for which the Appellant was convicted. The Magistrate noted that the appropriate starting point on the first charge after trial was in the region of 21 months and she sentenced him to 20 months' imprisonment. The sentence for possession of a forged identity card is in line with the usual sentence for that offence after plea. The appeals against sentence are dismissed.

Representation:

Miss Lily Ho, SGC, for DPP

Mok Wai To, Appellant, in person