The Queen v. Chan Sze-king

HCMA000888/1988

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL No. 888 OF 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 28th October, 1988

Date of Delivery of Judgment: 28th October, 1988

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J U D G M E N T

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1. The appellant pleaded guilty to two offences alleging use of an relating it another identity card re person, contrary to regulations made under the egistration of Persons Ordinance.

2. The brief facts disclosed that he was asked for his identity card at the restaurant where he worked on the 2nd of June of this year by two police officers, who apparently went to the restaurant for no other purpose than to inspect the appellant's identity card.

3. He then produced an identity card in the name of and belonging to another and it is that use of the identity card which forms the basis of the second charge.

4. The first charge alleges a use on the day before, namely on the 1st of June 1988. And the use which the appellant made of the card on that day was to present it to the person who employed him at the restaurant.

5. The learned magistrate sentenced him to imprisonment for 18 months on each charge but ordered that the sentences be served, concurrently. In his statement of findings the learned magistrate said "on reflection the appropriate sentence in respect of charge (a) should have been imprisonment for 15 months. However, I am still of the opinion that a sentence of 18 months imprisonment was appropriate in respect of charge (b)."

6. The learned magistrate was of the view, that the second offence was more serious because on the second occasion a lawful demand had been made by a person in authority, and by producing a card the appellant continued  with his deception.

7. In his appeal against sentence Mr. Plowman who appears for him today, originally relied on three grounds of appeal, but today has abandoned the second. In his first ground he seeks to argue that the sentence of 18 months imprisonment is manifestly excessive having regard to the following matters: (a)the substantial element involved in the commission of two offences was the, unlawful presence of the appellant in Hong Kong; and (b) the appellant arrived here on the 28th May 1988 soon after the change of policy in relation to offences of this nature and be fore the judgment of the court of appeal in R v. So Man-kin and. others, Magistracy Appeal 408 of 1988.

8. I see no merit, in this ground because in my view the appellant was not a "victim" of the change of policy It, had always been the policy to prosecute anillegal immigrant even if he was on his first illegal visit to Hong Kong if he were found in possession of a forged identity card or using the identity card of another person. It was not a change of policy which resulted in the appellant's being prosecuted on this occasion. So there is no merit in this ground.

9. The other ground on which Mr. Plowman still relies is that the magistrate took too serious a view of the circumstances surrounding the commission of the second offence.

10. On the facts it does appear that the police visit to the restaurant to inspect the appellant's identity card was prompted by his production of it the day before to obtain employment. The production to a police officer was nothing, other than conduct on the part of the appellant during the police investigation initiated, by the, suspicion aroused, by his production of the identity card the day before Accordingly, I do not think that it was the type of reprehensible conduct which the magistrate thought it to be. I do not think it warrants any greater punishment than the penalty for the first offence. Accordingly, I allow the appeal to the extent that the Sentences are quashed and bstitute therefore sentences of imprisonment for 15 months to be served concurrently.

Representation:

Mr. Gary Plowman (D.L.A.) for Appellant.

Miss M.A. Crabtree, S.C.C. for Crown/Respondent.