HKSAR v. Wu Jietian

HCMA 1008/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1008 OF 2004

(ON APPEAL FROM ESCC 3981/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 12 November 2004

Date of Judgment: 12 November 2004

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate court to possession of forged identity card, breach of condition of stay and using a forged identity card.

2.He was sentenced to 12 months’ imprisonment on the 1st charge, 2 months’ imprisonment on the 2nd charge and 12 months’ imprisonment on the 3rd charge, all sentences to be served concurrently.

3.The Appellant now appeals against those sentences.

4.The facts of the case which the Appellant had admitted were that he was a two-way permit holder and was allowed to stay in Hong Kong until 1 December this year.

5.During the time when the Appellant was in Hong Kong, he was stopped for an identity card check.  The Appellant produced an identity card in the name of NG Kin-wing which the police found to be invalid.  The Appellant was then searched and his two-way permit was found on him. 

6.Under caution, the Appellant admitted that he had bought the forged identity card in Shenzhen for HK$500 and he used that identity card to obtain a job in Hong Kong.  What is a worrying matter for the court was that this was one of those new “smart” identity card only recently issued by the Hong Kong Government.

7.The Appellant had a clear record in Hong Kong.  The learned Magistrate after hearing the duty lawyer’s mitigation on behalf of the Appellant considered, very properly, that these were very serious offences.  Particularly, because the Appellant had obtained his forged identity card in China before coming to Hong Kong and intended to use it in order to obtain employment in Hong Kong.

8.As has been very fairly pointed out by Miss Fung on behalf of the Respondent, the learned Magistrate did not say in his reasons that he had considered the proper starting point first for each of the charge and then reduced it because of the Appellant’s plea.

9.So this court has to look at the sentences that the learned Magistrate had imposed and consider whether, taking into account the Appellant’s pleas, the starting points were manifestly excessive in this case.

10.After taking into account these offences and the way they have been committed I do not consider that the starting point for each of these offences were manifestly excessive.  And I must also add here that the learned Magistrate is a very experienced Magistrate.

11.This was a simple matter which was before him and no doubt when he sentenced he was well aware that the Appellant had pleaded guilty.  So the fact that he did not say that he had taken into account the plea of guilty does not mean that he had not taken that into account.

12.The Appellant who appeared in person on this appeal does not submit that the sentences were manifestly excessive.  What the Appellant submitted is that he wishes for an early release because his wife had fallen down and is now paralyzed and that he wishes to go home early to take care of his family.  But I notice that in the mitigation, advanced on his behalf in the Court below by the duty lawyer, that the Appellant’s children are aged between 12 to 18. 

13.He also has his father at home so it does not constitute an exceptional circumstance, even if his wife is paralyzed, to persuade this court to grant him a reduced sentence for him to go home.

14.These are serious offences, when the Defendant decided to buy his forged identity card to come to Hong Kong to look for a job he well-knew that he would get a custodial sentence should he be arrested for these offences.  He should have thought of his family then.

15.So I see no merit in any of the grounds that he had advanced and so this appeal is dismissed.

Miss Mickey Fung, GC, of Department of Justice, for the Respondent

The Appellant, in person