HKSAR v. Lao Lian Suo

HCMA001192/2002

HCMA 1192/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1192 OF 2002

(ON APPEAL FROM TMCC 3364/2002)

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Coram: Hon V. Bokhary J in Court

Date of Hearing: 27 February 2003

Date of Judgment: 27 February 2003

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J U D G M E N T

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1.Section 7A(1) of the Registration of Persons Ordinance (Cap. 177) is headed simply "Possession of forged identity card". But it actually criminalizes the conduct of any person who, without lawful authority, uses a forged identity card or other document issued under that Ordinance or has such a card or other document in his custody or possession.

2.The same maximum penalty is provided for each of these two ways of offending under s. 7A(1), namely a fine at level 6 and 10 years' imprisonment on conviction on indictment and a fine at level 5 or two years' imprisonment on summary conviction. But use is by its nature more serious than custody or possession. In general therefore possession with intention to use attracts a heavier sentence than mere custody or possession; and actual use attracts an even heavier sentence: see HKSAR v Chan Man Mo [2001] 1 HKLRD 121 at p. 130E-G.

3.This Appellant, a man in his late thirties who was in Hong Kong on a two-way permit at the time of his offences, faced two charges under s. 7A(1), both laid on the basis of use.

4.The document involved was a forged Hong Kong Identity Card which he had manufactured for him in Shenzhen at a cost of RMB1,000. Charge 1 is of using the forged identity card at the Hong Kong Federation of Trade Unions' offices at Yau Ma Tei on 19 April 2002. This was done to obtain a construction and industrial safety training card. Charge 2 is of using the forged identity card at a construction site in Yuen Long on 13 November 2002. This was done with a view to obtaining employment.

5.Appearing before D. I. Thomas Esquire in the Magistrate's Court at Tuen Mun on 15 November 2002, the Appellant pleaded guilty to both charges, and was sentenced to a total of 15 months' imprisonment. On each charge, the Magistrate took a starting point of 15 months and reduced it to 10 months for the Appellant's guilty plea. The Magistrate ordered that five months of the sentence on Charge 2 run consecutively to the sentence on Charge 1. That is how the total sentence of 15 months' imprisonment was reached. The Appellant now appeals against sentence.

6.The perfected ground of appeal settled by his counsel and filed on his behalf reads:

"The sentences imposed by the learned Magistrate for both charges are manifestly excessive."

7.What I said in Chan Man Mo (supra) at p. 130E-G is this:

"(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 4 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."

As is obvious, item 5 is a continuation of item 4 and is likewise directed to the appropriate sentence upon a plea of guilty.

8.In his Reasons for Sentence, the Magistrate referred in terms to the line of cases culminating in Chan Man Mo (supra). Using a forged or somebody else's identity card to get a construction and industrial safety card, which is an obvious prelude to seeking employment, is only slightly less serious than using a forged or somebody else's identity card to seek employment.

9.Ten months is appropriate for Charge 1 while on the low side for Charge 2. If the Magistrate erred at all in taking 10 months for each charge, he erred in the Appellant's favour. As for the Magistrate's order making part of the Charge 2 sentence run consecutively to the Charge 1 sentence, such a course is warranted by the fact that the use covered by Charge 2 is distinct from the use covered by Charge 1. The total sentence passed by the Magistrate is within the range of punishment appropriate to the overall criminality involved.

10.Accordingly, this appeal against sentence is dismissed.

Representation:

Mr David A S Khosa, instructed by the Legal Aid Department, for the Appellant.

Miss Irene Poon, of the Department of Justice, for the Respondent.