HKSAR v. Tsui Lin Kwan

HCMA000105/1999

HCMA 105/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 105 OF 1999

(On appeal from NKCC 153 of 1999)

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Coram: Deputy Judge McMahon in Court

Date of Hearing: 31 March 1999

Date of Judgment: 31 March 1999

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J U D G M E N T

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1. The Appellant pleaded guilty at the North Kowloon court to an offence of possession of a forged identity card contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177 (being charge 1) and to an offence of breaching a condition of her stay in Hong Kong contrary to s. 41 of the Immigration Ordinance, Cap. 115 (being charge 2).

2. She was sentenced to 12 months imprisonment in respect of the 1st charged offence and to 1 months imprisonment in respect of the 2nd charged offence both sentences to be served concurrently.

3. She appeals those sentences on the basis that they are too severe.

4. The facts of the case were that on 6 January 1999 the Appellant was stopped by a uniformed police patrol. She produced a forged identity card. The police officer who examined it detected the forgery and arrested the Appellant.

5. Subsequent police investigations revealed the Appellant had been allowed into Hong Kong on 13 November 1998 but that she was permitted to stay only until 20 November 1998.

6. The learned magistrate said in his Statement of Findings:

"The proper sentence for possession of a forged identity card has long been established at 15 months imprisonment: R. v. CHAN Ming CA 353/83. As an act of mercy I reduced the usual sentence on the first charge to one of 12 months imprisonment. I sentenced her to 1 month concurrent on the second charge."

7. The magistrate, as he said, had some sympathy for the Appellant's personal circumstances and had accordingly further reduced her sentence on the 1st charged offence after allowing for her plea of guilty and clear record.

8. The Appellant today advances further mitigation before me to the effect that her father has now been injured in China in a motor accident and is presently in hospital there. This makes it difficult for her mother and husband to properly look after her children.

9. Like the learned magistrate I have some sympathy for the personal circumstances of the Appellant but they are not such as to cause any reduction of sentence on humanitarian grounds.

10. In any event, it may be said that the order that the learned magistrate made, that the sentences in respect of each charge be served concurrently, was a further act of mercy.

11. In my view there is no merit in this appeal. The sentence and the totality of sentence are by no means too severe. Accordingly the appeal is dismissed.

Representation:

Mr Johnny Chan, Senior Government Counsel, for the Respondent (HKSAR).

The Appellant - Tsui Lin Kwan in person.