HKSAR v. Chan Man Mo
Read the full judgment text of HCMA 1059/1999 on BabelCite. This High Court CFI judgment was delivered on 3 February 2000.
1. This appellant is a man of previous good character in his early 30's. On 24 August 1999 he appeared before Miss Bina Chainrai in the Magistrate's Court at San Po Kong on one charge of possession of a forged identity card, contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177. He pleaded guilty and admitted the facts set out in the "Brief Facts of the Case" handed up to the Magistrate by the prosecution. After hearing mitigation , the Magistrate sentenced the appellant to one
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HCMA001059/1999 HCMA 1059/1999 _____________ HEADNOTE _____________ (1) Where the circumstances are otherwise the same, the sentence ought to be the same whether the identity card was forged (so that the use or possession thereof offended against s. 7A(1) of the Registration of Persons Ordinance, Cap. 177) or related to another person (so that the use or possession thereof offended against s. 7A(1A) of that Ordinances). (2) Where the offender's presence in Hong Kong was illegal at the time of his offence, whether because he was an illegal immigrant or because he was an overstayer, a sentence of about 15 months' imprisonment upon a plea of guilty would be appropriate if he had a forged or somebody else's identity card for the purpose of obtaining employment or otherwise furthering his remaining in Hong Kong. (3) Where the offender's presence in Hong Kong was legal at the time of his offence, he being neither an illegal immigrant nor an overstayer, possession of somebody else's identity card which he found would merit a sentence of about three months' imprisonment upon a plea of guilty. (4) Even if the offender's presence in Hong Kong was legal at the time of his offence, because he was neither an illegal immigrant nor an overstayer, the fact that he intended to use a forged or somebody else's identity card to seek employment would be an aggravating factor, and the appropriate sentence upon a plea of guilty would be about four months' imprisonment. (5) If he had actually used a forged or somebody else's identity card in seeking employment, then a sentence of about a year's imprisonment would be appropriate even though his presence in Hong Kong was legal at the time of his offence because he was neither an illegal immigrant nor an overstayer. (6) It is an element of aggravation if an offender, whether here legally or illegally, actually produced a forged or somebody else's identity card to a police officer conducting an identity card check. Such conduct ought to be reflected by about an extra two months' imprisonment. Another way of putting it would be that it is an element of mitigation if the offender refrained from producing the identity card to the officer conducting the check. That element of mitigation was absent in HKSAR v. Lam Kai Kwong, Magistracy Crim. App. No. 882 of 1998, 6 November 1998 and explains a sentence of only four months' imprisonment for someone who armed himself with a bogus identity card before coming to Hong Kong. (7) In R v. Ghazanfar Iqbal, Magistracy Crim. App. No. 654 of 1993, 21 September 1993, at p. 2, Leong J (as he then was) said:
This reflects the principle that where deterrent sentences are passed to combat prevalence, lesser sentences are of course to be passed where a material feature of that prevalence is absent. HCMA 1059/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 1059 OF 1999 (On Appeal from SPCC 5484 of 1999) ____________
____________ Coram: Hon V. Bokhary J in Court Date of Hearing: 13 January 2000 Date of Judgment: 3 February 2000 _______________ J U D G M E N T _______________ 1. This appellant is a man of previous good character in his early 30's. On 24 August 1999 he appeared before Miss Bina Chainrai in the Magistrate's Court at San Po Kong on one charge of possession of a forged identity card, contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177. He pleaded guilty and admitted the facts set out in the "Brief Facts of the Case" handed up to the Magistrate by the prosecution. After hearing mitigation, the Magistrate sentenced the appellant to one year's imprisonment. The appellant applied to the Magistrate under s. 104 of the Magistrate's Ordinance, Cap. 227, for a review of the sentence which she had imposed on him. At the conclusion of that application on 14 September 1999 the Magistrate refused to alter the sentence. The appellant now appeals to this Court seeking a reduction of sentence. 2. The "Brief Facts of the Case" admitted by the appellant reads as follows, with the appellant referred to as "Deft" and the Police Constable who arrested him referred to as "PW1":
3. Immediately after the appellant had admitted those facts, the Magistrate asked whether it was admitted that the appellant's possession of the forged identity card was to further his stay in Hong Kong to obtain employment in Hong Kong. The Duty Lawyer representing the Appellant replied:
4. Section 7A(1) of the Registration of Persons Ordinance provides that:
5. A fine at level 5 means a maximum fine of $50,000 while a fine at level 6 means a maximum fine of $100,000: Criminal Procedure Ordinance, Cap. 221, s. 113B and Schedule 8. 6. Five perfected grounds of appeal against sentence have been filed on behalf of the appellant. But they are not really discrete grounds. They go together; and the first four grounds are all directed to the contention in the fifth and final ground that the sentence in the present case is wrong in principle or too severe. So rather then dealing with the grounds separately, I will recite them and then deal globally with all the points which they raised. 7. The grounds read:
8. In R v. Shamim Nawaz [1994] 1 HKCLR 195 at p. 198 Barnett J said:
9. The first distinction between R v. Shamim Nawaz and the present case is that Mr Shamim Nawaz's offence was of possession of an identity card relating to another person, contrary to s. 7A(1A) of the Registration of Persons Ordinance, while the present appellant's offence was of possession of a forged identity card, contrary to s. 7A(1) of that Ordinance. But this distinction does not always make a difference. In R v. Lam Shui-leung [1987] HKLR 57 at pp 58-59 O'Connor J said:
10. Since O'Connor J's decision in R v. Lam Shui-leung, the legislation has been amended so that the maximum punishment for use or possession of a forged identity card and the maximum punishment for use or possession of an identity card relating to another are (as one sees from s. 7A(1) and s. 7A(1A) of the Registration of the Persons Ordinance) exactly the same, offenders being liable:
11. As to the last sentence of the passage which I have quoted from O'Connor J's judgment in R v. Lam Shui-leung, I would simply observe that where a forged identity card is used, everyone who deals with the offender on the strength of that forged identity card can be regarded as a victim of the offender's crime. 12. Where I certainly do agree with O'Connor J is that I share his view, expressed in the quoted passage, that: "It does not follow that where the circumstances of particular cases are identical, except for the nature of the card, the sentences should differ". 13. The second distinction between R v. Shamim Nawaz and the present case is that Mr Shamim Nawaz was an overstayer at the time of his offence while the present appellant was neither an illegal immigrant nor an overstayer at the time of his offence. He came here on a two-way permit, and was given permission to remain here until 12 October 1999. His offence was committed on 20 August 1999. This distinction brings us to the decision of Leong J (as he then was) in R v. Ghazanfar Iqbal, Magistracy Crim. App. No. 654 of 1993, 21 September 1993 and the decision of Hartmann J in HKSAR v. Chan Tsan Fai, Magistracy Crim. App. No. 312 of 1998, 1 May 1998. 14. Mr Ghazanfar Iqbal came to Hong Kong from overseas on a foreign passport with a Hong Kong visa. Mr Chan Tsan Fai came to Hong Kong from the Mainland on a two-way permit. Each was given permission to remain in Hong Kong for a limited period. Each found a lost identity card and kept it, thus committing the offence of possession of an identity card relating to another. Each committed that offence within the period of his permission to remain in Hong Kong. Thus neither of them was an illegal immigrant or an overstayer at the time of his offence. 15. Leong J reduced Mr Ghazanfar Iqbal's sentence from nine months' imprisonment to three months' imprisonment. Hartmann J said that Mr Chan Tsan Fai's sentence should have been one of three months' imprisonment rather than the sentence of 12 months' imprisonment passed on him in the Magistrate's Court. But since he had already served longer than that, Hartmann J substituted such sentence as resulted in his immediate release and repatriation to the Mainland. 16. It was accepted that Mr Ghazanfar Iqbal had not used the identity card for any purpose. And there was no suggestion that he intended to use it for any purpose. So his situation is obviously different from that of the present appellant. 17. As for Mr Chan Tsan Fai, Hartmann J said: -
18. Does this mean that there is no material difference between his situation and that of the present appellant? In my judgment, the Magistrate was right in taking the view that the present appellant's situation is materially different from that of Mr Chan Tsan Fai. 19. Mr Chan Tsan Fai, it will be remembered, happened to find somebody else's identity card while he was in Hong Kong. The present appellant, on the other hand, had acquired the forged identity card in the Mainland before coming to Hong Kong, paying RMB$6,000 for it. That gives the present case an element of planning absent in R v. Ghazanfar Iqbal and HKSAR v. Chan Tsan Fai. 20. But that element of planning was also present in the case of HKSAR v. Lam Kai Kwong, Magistracy Crim. App. No. 882 of 1998, 6 November 1998. Pang J's judgment in that case was not recorded, but I have been supplied with a brief note of what he said. 21. As to the facts of the case, the "Brief Facts of Case" admitted by Mr Lam Kai Kwong were these:
22. Pang J reduced Mr Lam Kai Kwong's sentence from the 12 months' imprisonment imposed in the Magistrate's Court to a sentence of four months' imprisonment. Going by a brief note taken by someone present in his court, Pang J seems to have taken that course because there had been no actual use of the identity card in seeking employment. 23. That is also the position here. There is no evidence or admission that the present appellant had made actual use of the identity card in seeking employment. The statement by the Duty Lawyer to the Magistrate that the appellant "intended to use the forged identity card to look for a job in Hong Kong but was unable to do so" is ambiguous. Perhaps he had produced the identity card to prospective employer and still failed to get employment. Or perhaps he was not even able to find a single prospective employer to whom he could produce the identity card. We simply do not know. 24. There is, however, one sense in which there is evidence of use in the present case absent in HKSAR v. Lam Kai Kwong. In its original form the Brief Facts of Case in that case stated that the police officer who conducted the identity card check "was given [the identity card] which was found to be a forgery". But before those Brief Facts of Case were admitted by Mr Lam Kai Kwong, they were amended to state in neutral terms simply that the identity card "in [Mr Lam Kai Kwong's] possession was found to be a forgery". In the present case, the Brief Facts of Case admitted by the present appellant says in terms that he produced the forged identity card to the constable for inspection. By reason of that difference, the present appellant's conduct was more serious than Mr Lam Kai Kwong's conduct. But I do not feel able to say that it was so much more serious as to justify a sentence of one year's imprisonment. There is grave suspicion that the present appellant intended to remain in Hong Kong past the time when he was lawfully entitled to be here. But it cannot be read to be clear beyond reasonable doubt that such was his intention. 25. I propose to reduce the present appellant's sentence. But before I come to the extent of the reduction, I propose to gather together the principles and sentence levels which emerge from the past cases which I have dealt with above. Apart from serving to explain the reduction which I will make, such an exercise will, I believe, be of assistance to Magistrates in future cases of this kind. I do not take it upon myself to lay down guidelines in the way that the Court of Appeal does, but I trust that what I am about to say will nevertheless be helpful to Magistrates.
26. In all the circumstances and on the principles and sentence levels set out above, I allow the appeal by reducing the appellant's term from one year's imprisonment to six months' imprisonment. Although I have halved the sentence passed by the Magistrate, I should acknowledge that her discussion of the past cases has helped me in dealing with this matter. Far from criticizing her, I would acknowledge her contribution towards my effort in bringing greater clarity and consistency to this area of sentencing.
Representation: Mr William Lam, SADPP of the Department of Justice, for the Respondent Mr Philip Wong, instructed by the Legal Aid Department, for the Appellant |
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