HKSAR v. Dou Yuping

HCMA1104/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1104 OF 2005

(ON APPEAL FROM KCCC 4225 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 6 January 2006

Date of Judgment : 6 January 2006

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J U D G M E N T

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1.This is an appeal against sentence only.

2.The appellant was convicted in Kowloon City Magistrates’ Court on her own plea of an offence of possession of a forged identity card, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap.115.  She was sentenced to 12 months’ imprisonment.  

3.The facts of the case were straightforward.  The appellant had come to Hong Kong legally, pursuant to a China two-way permit.  Some two months later, she was stopped by police officers for an identity check.  She produced her two-way permit but when an officer searched her handbag, a forged Hong Kong identity card was found in her name. 

4.In mitigation before the magistrate, Mr Tam, who appears also in this appeal, relied on a medical chit which purported to be issued by a hospital in China which certified that the appellant’s father had terminal stomach cancer.  The ground of the appeal is that the magistrate in passing sentence did not take a proper starting point and did not properly allow for the ill health of the appellant’s father in terms of the sentence he imposed.

5.Courts in Hong Kong from bitter experience have learnt to treat Mainland offenders who claim a close relative has a terminal illness and who produce certificates to that effect with justified scepticism.  I must say I share that scepticism.  It is unfortunately true that forged documents such as falsified medical chits are occasionally produced before Hong Kong courts, and one must be wary particularly where the offender who produced such documents had admitted possession of other forged documents.  But the magistrate in the present case gave, as he was entitled to do, some credence to the medical chit produced on behalf of the appellant and instead of sentencing her to what he said was the appropriate sentence of 15 months’ after plea, sentenced her instead to 12 months’ imprisonment.  In other words he gave her a sentencing discount for humanitarian reasons of 3 months. 

6.But Mr Tam points out that the magistrate was wrong to think the appropriate sentence after plea to possession of a forged identity card was one of 15 months’ imprisonment.  He relies on the case of HKSAR v. Li Chang Li, HCMA935/2004 which was referred to the Court of Appeal pursuant to the provisions of section 118(1)(d) of the Magistrates’ Ordinance.   The Court of Appeal suggested that the guideline sentence for these offences was 15 months’ imprisonment after plea but only in circumstances where the offender used the forged identity card in some way.  In cases of simple possession, such as the present case, the Court suggested a sentence of 12 months’ imprisonment after plea.  

7.I accept that the magistrate took the wrong guideline into account.  I accept also that he intended to give the appellant a three-month discount on sentence for humanitarian reasons. 

8.On that basis, the appropriate sentence after plea should have been 12 months’ imprisonment.  Allowing the three-month humanitarian discount to that sentence which the magistrate intended to apply, I order that the present sentence been set aside and replaced with a sentence of 9 months’ imprisonment.

Mr Harish Melwaney, SGC of the Department of Justice, for the Respondent

Mr Philip Tam Tak Shing, instructed by Messrs Yu & Associates, assigned by DLA, for the Appellant