HKSAR v. Lam Sau Leung

HCMA001040/2001

HCMA 1040/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1040 OF 2001

(ON APPEAL FROM ESCC 2964/2001)

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Coram: Deputy High Court Judge Gill in Court

Date of Hearing: 7 December 2001

Date of Judgment: 7 December 2001

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J U D G M E N T

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1.On 8 September 2001 the appellant, a female aged 49, appeared before M C Jenkins Esquire，principal magistrate，and pleaded guilty to two offences. The first was using a false instrument and the second being in breach of a condition to stay in Hong Kong.

2.Before the magistrate the appellant admitted the prosecution's summary of facts, which stated that on 5 September 2001 she was stopped by a patrolling police officer and invited to reveal her identity. She produced what was to become exhibit P1. It was a forged Immigration recognisance form in the name of someone called Chan Po Yuk. The police officer noted the photograph attached did not match that of the appellant. Under caution she admitted the offences for which she came to be charged. Her permission to stay had expired on 22 June and she had purchased P1 for $1,500.00.

3.The magistrate sentenced her to 8 months and 2 months respectively the terms to run concurrently.

4.She appeals those sentences upon the grounds that they are too severe.

5.Dealing first with the first charge; unlike the magistrate I have not had the benefit of inspecting P1. He describes it as being a document issued by the Immigration Department to those whose status is unclear. He went on to say: 'Whatever right it confers it was clear to me that the appellant had purchased it and shown it to the police officer with the intention of prolonging her stay in Hong Kong. It could not have served any other purpose.'

6.When he sentenced the appellant for the charge of using P1, he said:

" It is apparent to me that you had this forged document in your possession for the purpose of furthering your stay in Hong Kong. There can be no other explanation for you to have it in your possession, especially when you had purchased it for $1,500 and you showed it to the police officer when he asked for proof of your identity. No doubt you were hoping to mislead him to the effect that you were entitled to be in Hong Kong lawfully. But of course at the time in question you were not because your permission to stay in Hong Kong had expired on 22 June.

In those circumstances the usual sentence that would apply would be a prison term of 15 months. But I take account of your personal situation for which I do have some sympathy. That being so I do feel able to make a reduction in the sentence that would normally apply."

7.His reference to 15 months' imprisonment had regard to a long line of cases in which it has been stated that the appropriate sentence after plea for being in possession of another's identity card or a forged one for the purpose of extending an illegal stay is one of 15 months' imprisonment.

8.For example is the case of R v Shamim Nawaz [1994] 1 HKCLR 195. At p. 198 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 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."

9.Of course the document in question is not another's identity card; in my view by virtue of its being a pro tem Immigration document, this offence is less serious warranting a reduced sentence. The magistrate did not specifically say so, but his sentence of 8 months whilst recognizing the appellant's personal circumstances also adequately reflected the lesser culpability; in my view the term cannot be faulted.

10.I come now to the second charge; given the length of overstay the sentence imposed of 2 months is well within the usual range; see for example R v Nithet Sarasit 1988 No. 323 MA and R v Cheng Yuk Lum 1990 No. 129 MA.

11.The appellant has told me of her tale of hardship in her home country which drove her to committing these offences. There is nothing material that was not before the magistrate for which I believe he has made adequate and appropriate allowance. Furthermore, tragic though the appellant's circumstances are, she must have been well aware of the prejudice to her family if she were to be caught but took the risk anyway.

12.The sentences individually and overall were neither wrong in principle nor manifestly excessive; the appeal is dismissed.

Representation:

Ms Alice Chan, SGC for Director of Public Prosecutions, for the respondent

Appellant, Lam Sau Leung, present