HKSAR v. Yang Chet Ming and Another

HCMA000437/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

1998, No. 437
(HCMA)

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

Coram: Hon. Mayo, J.A. in Court

Date of hearing: 21 July 1998

Date of delivery of judgment: 21 July 1998

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

J U D G M E N T

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

Mayo, J.A. (giving the judgment of the Court):

1. The Appellant who is a Filipino lady pleaded guilty to a breach of the conditions permitting her to remain in Hong Kong and possession of an identity card belonging to someone else. She was sentenced to 28 days on the first count and 8 months' imprisonment on the second. She now appeals against these sentences.

2. The agreed facts were:

"The defendant was subjected to an identity check at the Neptune Disco, Wanchai at 23:45 hours on the day in question. She was found to be in possession of an identity card in the name of Josephine P.CRUZ. Later she explained that she had borrowed the identity card from a friend to purchase a telephone. She admitted to being an overstayer who was only allowed to stay until the 17th of February 1998. The owner of the identity card claimed to have found it missing from her wallet on the 2 April 1998. She and the defendant had been roommates."

3. In passing sentence the magistrate G. Tallentire Esq. said:

"In sentencing the defendant I had regard to the offences, the facts of those offence and the mitigation advanced on behalf of the defendant. It is well established that offences involving misuse of identity card must perforce attract a substantial period of immediate imprisonment. The situation here was aggravated by the defendant's status as an overstayer. I gave her full discount for her plea of guilty at the first available opportunity and her hitherto clear record. Accordingly I sentenced her to 28 days imprisonment and 8 months imprisonment respectively to be served concurrently."

4. What is however conceded by Mr. Leung for the prosecution was that there was no causal link between the overstay and the improper use of the identity card. While the magistrate was right to take a serious view of misuse of the identity card, the starting point he adopted was too high in this case.

5. This reasoning is in conformity with the reasoning in R. v. Shamim Nawaz [1994] 1 HKCLR 195.

6. In the circumstances of this case the starting point should have been 3 months' imprisonment on the 2nd charge and taking into account the guilty plea the sentence should have been 2 months.

7. The appeal is allowed to this extent and sentence on the second charge is reduced to a sentence of 2 months' imprisonment.

Representation:

Mr. David Leung, S.G.C. (D.P.P.) for Respondent

Mr. Wilson Chan assigned by D.L.A. for Appellant