Attorney General v. Lam Ping Chun

CAAR000010/1988

BETWEEN

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Coram: Hon. Cons, V.-P., Hunter, J.A. & Mortimer, J.

Date of hearing: 17 August 1988

Date of delivery of judgment: 17 August 1988

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application by the Attorney General, with the leave of the Chief Justice, to review the sentence passed on the 14th June by a Magistrate, Mrs. Chui, sitting in San Po Kong Magistracy, upon the conviction of the Respondent for the offence of using the identity card of another person contrary to Regulation 12(3) and (4) of the Registration of Persons Regulation. The sentence imposed was one of 15 months, suspended for 3 years. The Respondent is however currently in custody pursuant to an order made under Section 81A(3) of the Criminal Procedure Ordinance. The Attorney contends by this application that the suspension of the sentence was wrong in principle.

2. The Respondent was arrested on the 28th May when working in a garment factory. He was unable to produce an identity card. Inquiries revealed that he had started to work in the factory some 3 days earlier. He had then produced an identity card which he later claimed to have picked up in the street, subsequently discarding the same. He told the Magistrate that he had come illegally into Hong Kong only 3 days before his arrest, and that he had no relatives here.

3. In R. v Lau Chung Kwan⁽1), which this Court decided as long age as November 1986, it was suggested that 15 months would be an appropriate sentence for offences contrary to Regulation 12. Only a few days ago, in So Man King⁽²⁾, having been referred to the principal authorities dealing with offences against Regulation 12 and with the related offences of using a forged identity card and of landing or remaining unlawfully in Hong Kong, all of which can be conveniently taken together as "immigration offences", we noted that the substantial element in sentences passed for all 3 offences was the defendant's unlawful presence in Hong Kong, which in itself, in normal circumstances, merited a sentence of 15 months' imprisonment; the actual use of a forged or other person's identity card to obtain some further or particular benefit could be considered an aggravating feature. We reiterate yet once again, that sentencing for these offences is intended to have a deterrent effect.

4. It is of course possible to envisage, as was accepted in Lau Chung Kwan^(l), cases where the use of a forged or another person's identity card is in no way related to unlawful presence in Hong Kong. Those cases naturally are very different and will need to be treated differently. The present case however clearly does not fall within that category.

5. The Magistrate was at pains to point out in her Reasons for Sentence that it is not mandatory to pass a sentence of 15 months for this offence. With that we entirely agree. Guidelines are meant only to guide. They are not intended to place lower courts in a straight jacket. There may well be cases where circumstances do warrant a lesser sentence, and humanitarian considerations must always be respected. On occasions they may even be so strong that suspension of the sentence would be appropriate.

6. In the particular instance the Magistrate apparently accepted that humanitarian considerations to that degree were to be found in the fact that the Respondent was only 18 years of age, that he was a stranger alone in Hong Kong and that he had not even a roof to cover his head.

7. With every respect to the Magistrate, those factors do not even start to get a suspended sentence off the ground. Illegal immigrants are commonly in the younger age groups, although they must necessarily be sufficiently mature to have made the decision to embark on the hazardous course that they did; and if the Respondent has no friends or relatives here, and no place to lay his head, those facts were well known to him before he set out.

8. To suspend the sentence by reason of those circumstances alone is contrary to the principles established by this Court. We therefore allow the application and vary the sentence to remove the suspension. At the same time, following the established practice of this Court in procedures of this kind, we must discount to some extent what should have been the sentence. For that reason, and that reason alone, we reduce the present sentence to one of 12 months.

⁽¹⁾ [1987] H.K.L.R. 203

⁽²⁾ Magistracy Appeal No. 408/88

Representation:

G.J. Lugar-Mawson, Crown Prosecutor for the Applicant

B.K. Ho assigned by D.L.A. for the Respondent