HKSAR v. Guo, Zhonghui

HCMA 756/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 756 OF 2004

(ON APPEAL FROM TWCC 2167/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 28 September and 6 October 2004

Date of Judgment: 6 October 2004

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J U D G M E N T

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1.This Appellant pleaded guilty to one charge of Possession of Forged Identity Card, one charge of Possession of a False Instrument and one charge of Breach of Condition of Stay-that being an overstay.  On Charge 1, he was sentenced to 15 months’ imprisonment, on Charge 2 to 10 months’ imprisonment and on Charge 3 to 4 months’ imprisonment.  The Magistrate ordered the sentences to run concurrently.  The Appellant appealed against the sentence on the general ground that they were too severe.

2.The facts admitted by the Appellant in the court below, showed the police stopped him and checked his ID card which later, was found to be forged.  He had in his possession a Construction Industry Safety Training Certificate, also found to be forged. 

3.The Appellant was an overstayer who had come to Hong Kong on 29 August 2001 and was given permission to stay until 3 September 2001.  He stayed until the day he was arrested, which was 10 July 2004. 

4.The Magistrate was told in mitigation that the Appellant was a single man who worked in a factory on the Mainland.  His parents aged 64, were living in Hong Kong and he claimed that he came here to take care of them. 

5.The Appellant had a criminal record.  On 11 November 1998, he was convicted of breach of condition of stay and fined $1,000. 

6.On 20 July 1999, he was convicted of another breach of condition of stay.  He was sentenced to 1 month’s imprisonment suspended for 2 years and fined $1,000. 

7.The Appellant told this court that he came to Hong Kong to care for his parents who were aged and not very mobile.  He was aware that he was foolish to violate the laws of Hong Kong, but sought leniency.

8.Given the length of overstay and his previous record, the sentence on Charge 3 was lenient.  Punishment on 2 previous convictions had not deterred the Appellant from continuing to breach his conditions of stay.

9.At the conclusion of the appeal on 28 September 2004 I dismissed the appeal, increased the sentence on Charge 3 to 6 months and ordered that sentence to run consecutively to the sentences on Charges 1 and 2.  However, before the decision had been entered in the record of the court of trial, I re-listed the matter for hearing for two reasons.  The first was that I had failed to invite, specifically, the Appellant’s views or submissions about the proposed increase.  The second was that a reconsideration of the totality of sentence indicated that justice would be served by ordering the original sentence for Charge 3 to run consecutively to the other sentences.  (In proceeding thus I noted as authority R v Lau Kwok Wah [1975] HKLR 24.)

10.When the Appellant appeared again I explained why I had re-listed the matter and asked for his submission on the matter of an increase of sentence.  Those submissions repeated his earlier ones.

11.As no cogent submissions were advanced to show the sentences were excessive or wrong in principle, or that an increase was not warranted I dismissed the appeal.  I ordered the original sentence on Charge 3 to stand.  However as a matter of sentencing principle, I ordered that the sentence on Charge 3 run consecutively to those on Charges 1 and 2.  The total sentence is 19 months’ imprisonment.

Miss Lily Ho, SGC of Department of Justice, for the Respondent

The Appellant, in person