HKSAR v. Lee Wing Hei

HCMA000636/2002

HCMA 636/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 636 OF 2002

(ON APPEAL FROM NKCC 3250 /2002)

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Coram: Deputy High Court Judge Wong in Court

Date of Hearing: 31 October 2002

Date of Judgment: 31 October 2002

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J U D G M E N T

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1.The Appellant Lee Wing Hei pleaded guilty before a Magistrate to a charge of using a forged identity card and was sentenced to three months imprisonment. He now appeals against the sentence of three months on the ground that it is too severe.

2.The facts were succinctly summarized by his counsel before the Magistrate in his plea for mitigation. Mr Chow, who represented the Appellant below said this:

"Sir, the reason why the defendant acquired the forged ID card was that, sometime in 1996, he was in trouble with a group of friends concerning some money dispute and he was worried that the friends might take revenge of him, so he went into hiding. And the name he used is the brother's name. He only used the card to get a job. He never used it to commit any other crime. On this very occasion, because of his previous employer asked him to open a bank account for the purpose of contribution to the provident fund, so that was acting on employer's instruction. So, he went to this bank to open an account and it was found out by the bank staff."

3.Mr McGowan who represents the Appellant before this court urges me to consider placing the Appellant on a community service order. He argues that the offence is not a serious one and certainly one that is different from cases involving illegal immigrants.

4.It has to be borne in mind that if a forged identity card is used by an illegal immigrant to obtain employments, the standard sentence of 15 months would have to be imposed. The Magistrate in the course of hearing mitigation from Mr Chow was urged to consider community service order, but obviously he did not accept that it was appropriate in a case like this. In his observation, the Magistrate said:

"Well, the authorities do say that, for using a forged identity card, which is the case here, that a custodial sentence is really the only option, although I agree that it's not the 15-month or 10-month tariff. But they say that something in the range of three or four months - V Bokhary J says that in her list of offences with respect to this. And there may be a reduction in that for the uniqueness involved here but, forged identity cards are very, very serious."

5.I agree that the present offence must be punished with an immediate custodial sentence and community service is, in my view, not an option as the Magistrate very rightly pointed out.

6.For these reasons, the appeal against sentence is dismissed.

Representation:

Mr P K Madigan, SGC of the Department of Justice, for the Hong Kong Special Administrative Region

Mr James McGowan, instructed by Messrs Quan & Co., for the Appellant