HKSAR v. Lo Mei Ling

HCMA242/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA242 OF 2005

(ON APPEAL FROM TMCC647 OF 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  27 April 2005

Date of Judgment:  27 April 2005

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J U D G M E N T

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1.In this case, the Appellant appeals her sentence of 15 months’ imprisonment for using a forged identity card and a concurrent sentence of 15 months for remaining in Hong Kong without authority, having landed unlawfully.

2.She suffered some sort of accident and was taken to hospital, and it was there that she produced to the registration clerk the forged identity card.  She pleaded guilty to unlawfully remaining and admitted the facts which set out that she had sneaked in on the day in question.

3.However, before me today she says she was a two-way permit holder and that she pleaded guilty to being an illegal immigrant because she understood from a policeman that this would result in her repatriation.  She does not have her two-way permit with her today.  She says it is with relatives.  She cannot rely on any exceptional humanitarian grounds.

4.On the basis of the pleas of guilty that she tendered, the sentences of 15 months on the basis of So Man King were inevitable.  The question arises:  would it make any difference if she was, in fact, a two-way permit holder?  Leaving aside difficult questions about setting aside unequivocal pleas, if the court were satisfied that she was in possession of a two-way permit, would the sentence have been any less?  And I regret to say that the answer is, in my judgment, it would have made no difference.

5.In the recent Court of Appeal case hearing an appeal from the Magistracy called Lee Chang Li, and it is HCMA 935 of 2004, the Court of Appeal addressed the problem of sentence when a forged identity card is used or possessed by people who are two-way permit holders.

6.There has been no uniformity of practice, and different cases of equal status on appeals from the Magistracy have taken different courses.  The Court of Appeal decided in favour of the sentence being 12 months for possessing a forged Hong Kong identity card if you were a two-way permit holder and 15 months’ imprisonment if you actually used it or produced it.  In this case, the Appellant produced it at the hospital and so would be subject to a 15 months’ sentence.

7.Mr Brook who appears for the Respondent, in the fine traditions of the Bar, raised a point in favour of the Appellant to say if she had to be dealt with on the basis that she was a two-way permit holder, perhaps it may have been open to the court to pass a sentence on the lesser basis because she was dealt with on 2 March, two days before the decision of the Court of Appeal to which I have referred.

8.In my judgment, no court could now exercise its discretion to follow a competing practice in sentencing that has been subsequently disapproved.  So it means this, that even if the Appellant is right about being a two-way permit holder, it would not make any difference to the length of her sentence.

9.In those circumstances, her appeal against these sentences today are dismissed.

Mr E J Brook, Senior Government Counsel, of the Department of Justice, for the Respondent

Appellant, Lo Mei-ling, in person