HKSAR v. Asadhore Mohamad Faleel

HCMA001275/2001

HCMA 1275/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1275 OF 2001

(ON APPEAL FROM KCCC 1721/2001)

____________

____________

Coram: Hon Beeson J in Court

Date of Hearing: 10 January 2002

Date of Judgment: 10 January 2002

_______________

J U D G M E N T

_______________

1.The Appellant appeals against his conviction and sentence on two charges: one of Possession of an Identity Card belonging to Another person, contrary to Section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 and also a Breach of Condition of Stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. On the first count, after trial, the Appellant was sentenced to 15 months' imprisonment. On the second charge he pleaded guilty and was sentenced to 1 day's imprisonment which was ordered to run concurrently with the 15 months on the first charge.

2.The facts were that the police found the Appellant near Chungking Mansion and questioned him, initially because they suspected him of being in possession of DD; he was asked to produce an identity card. The Appellant took an identity card from his wallet and showed it to the police officer but was unable to remember the number when asked what it was. The officer arrested the Appellant for possession of an identity card relating to another person. Enquiries showed that the Appellant had a visa valid to the day before his arrest and he had overstayed by one day. The identity card was in the name of Ali Abdul Kader. At trial the Appellant admitted possession but claimed he had found the card. He denied any intent to use it.

3.The Appellant told the Magistrate that he did not extend his visa because the Immigration Department was not open on Sunday. He said on appeal, that, he was sleeping at Star Ferry and on the day of arrest his belongings including his passport had been stolen. He went to the Kowloon Mosque to pray and happened to find an identity card there. He checked if it belonged to anybody, but no one claimed it. He was told by a man he should hand it to the police. The Appellant put the identity card in a flower pot preparatory to taking it to the police. Later, on his way to the United Nations High Commission for Refugees, he went to Chungking Mansions to have lunch. Prior to doing so, he took the identity card from the flower pot intending to hand it to the police with the help of the man who had advised him to take it to the police in the first place. He heard the officer saying something like "ID ID" but did not understand what he was saying as he had never seen an identity card before. He took out the identity card and handed the card to the officer, without thought of using it. The officer agreed there was a communication problem between him and the Appellant at the time of the arrest.

4.The Magistrate, unsurprisingly, did not believe the improbable account given by the Appellant and he was satisfied that the Appellant handed the identity card to the police officer when he was asked to do so. Having considered the facts of the case and the evidence, I am satisfied that the Magistrate was correct in reaching his conclusion. The appeal against conviction is dismissed. I note that the Magistrate imposed the correct sentence on the first charge and passed an appropriate sentence for the overstaying. The appeal against sentence is dismissed.

Representation:

Mr Daniel Ozorio, SGC, for HKSAR

Appellant in person