HKSAR v. Bao Shi Mei

HCMA000347/2004

HCMA347/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.347 OF 2004

(ON APPEAL FROM ESCC 1241 OF 2004)

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Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 9 July 2004

Date of Judgment: 9 July 2004

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J U D G M E N T

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1.The appellant Bao Shi Mei pleaded guilty before a magistrate to one charge of possession of forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177. He was sentenced to 10 months' imprisonment. He now appeals against the sentence.

The facts

2.The appellant was a visitor from the Mainland. He was found in possession of a forged identity card which contained his photograph. He said he had bought it from a person who told him that it would be easier to get a job in Hong Kong with a forged card.

Reasons of the magistrate

3.The Magistrate drew the inference that the appellant intended to prolong his stay in Hong Kong beyond the permitted period with the identity card and he took 15 months' imprisonment as a starting point and reduced it to 10 months' imprisonment.

Ground of appeal

4.Ms Cheng for the appellant referred to HKSAR v. Chan Man Mo [2001] 1 HKLRD 121, per Bokhary J, which set out by way of reference that the usual sentence for possession of a forged or somebody else's identity card with intention to seek employment is 4 months' imprisonment.

5.She also referred to a body of cases starting with HKSAR v. Chan Han Wei HCMA148/2003, per Deputy Judge Day that, the sentence could be increased to eight months if possession of the identity card with intention to work is coupled with an intention to prolong the stay in Hong Kong beyond the permitted period. Ms Cheng submitted that the 10 months' imprisonment is higher than the normal sentence of 8 months. In such circumstance, it is excessive.

6.Ms Cheng did not complain about the drawing of the inference of prolonged stay by the magistrate. Further, Ms Cheng submitted by way of mitigation that the appellant has parents in their eighties and of poor health. There is a certificate from the local authority of the native village in the Mainland that his father is blind and the defendant has the heavy burden of supporting them. It was also submitted that the defendant had a traffic accident which fractured his ankle resulting in a slight cripple. The defendant was unable to resume farming work after the accident hence he came to Hong Kong to seek a better future. But it was submitted that with the physical disability it would in fact be difficult for him to get a job in Hong Kong.

Consideration upon appeal

7.The respondent has sought to put in statistics of sentences imposed on offenders who travelled to Hong Kong on two-way permits. However, those statistics are for offences of using and/or possession of forged identity card. According to Chan Man Mo, the usual sentence for using a forged identity card is higher at 1 year's imprisonment. Hence, the statistics are not readily useful to indicate the comparable offence and facts. As to the humanitarian consideration, the prosecution had no submission.

8.In all the circumstances, I shall set aside the sentence of 10 months' imprisonment and sentence the defendant to 7 months' imprisonment instead.

Representation:

Ms Kathie Cheung, GC of the Department of Justice, for the Respondent

Ms Flora Cheng, instructed by Messrs Lau, Chan & Ko, assigned by the Director of Legal Aid, for the Appellant