The Queen v. Kwok Hoi Ming

HCMA000188/1990

------------------

HEADNOTE

------------------

SENTENCE - POSSESSION OF IDENTITY CARD RELATING TO ANOTHER - HONG KONG RESIDENT - NO EXPLANATION - NINE MONTHS NOT EXCESSIVE ON PLEA OF GUILTY.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 188 of 1991

----------------

BETWEEN

----------------

Coram: Hon. Bewley, J. in Court

Date of hearing: 17 May 1991

Date of delivery of judgment: 17 May 1991

-----------------

JUDGMENT

-----------------

1. The appellant pleaded guilty in Central Magistrates Court to possession of an identity card relating to another person without lawful authority or reasonable excuse, contrary to s. 7A(1A) of the Registration of Persons Ordinance, Cap. 177. He was sentenced by Mr Wright to nine months imprisonment.

2. The appellant worked at a Kowloon nightclub as public relations manager. On 12th June 1990 he was interviewed by ICAC officers who asked him if he had a desk on the premises. The appellant took them to an unnumbered locker which he opened with a key. Inside was found an identity card in the name of So Po Wai.

3. In an interview later that day the appellant said under caution that the identity card had been picked up in the nightclub a month previously by a cleaning woman. It had not been claimed two weeks later and the manager told the appellant to keep it pending claim.

4. Enquiries were made from the owner of the identity card and from the manager and the cleaner at the nightclub. It became apparent that the appellant's story was completely untrue the: identity card had not been lost in the nightclub.

5. When the appellant first appeared in court he was unrepresented. He pleaded guilty but disagreed with the facts as recited above. He maintained that he was responsible for looking after identity cards picked up in the nightclub until they were claimed. The magistrate pointed out that other persons had given a different version of what had occurred. The appellant then admitted the facts and he was convicted.

6. The case was adjourned because the appellant's record was not available but first he was asked if he had any objection to a remand in custody. He replied "I have to support daughter. I just put it in locker for fairly long period".

7. On his next appearance the appellant was represented by a solicitor who submitted that the appellant was guilty only of inadvertence. The magistrate was obliged then to read out what had taken place when the plea was taken.

8. This offence carries a maximum penalty on summary conviction of a fine of $20,000 and two years imprisonment. It was created in 1989 in succession to Regulation 12(3) of the Registration of Persons ordinance, which was repealed.

9. Prosecutions usually involve illegal immigrants.  Sentencing in such cases is governed by the guidelines in R. v. So Man-king (1989) 1 HKLR 142 and usually attract sentences of 15 months. There is a special reason for a heavy sentence in such cases which does not apply in cases like this.

10. The gravity of this offence, when committed by Hong Kong residents, may vary enormously depending on the facts of each case. There will however usually be some explanation for possession of the identity card. Here, once the first explanation had been proved to be a lie, no further explanation was forthcoming.

11. In those circumstances a magistrate is entitled to take a sinister view of the reason for possessing the identity card. In my view a sentence of nine months on the facts of this case, following a guilty plea, was entirely justified and I dismissed the appeal.

Representation:

Mr Alfred Chan, inst'd by M/s. Herbert Smith on fiat from the A.G., for the Crown

Mr A. Macrae, inst'd by M/s. So & Co., for Appellant