HKSAR v. Chan Yip Chi

CACC 411/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 411 OF 2005 

(ON APPEAL FROM DCCC 350 of 2005)

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Before: Hon Yeung & Yuen JJA in Court

Date of Hearing:   20 December 2005

Date of Judgment:  20 December 2005

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 J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.The applicant – Chan Yip-chi was arrested in a sting operation, conducted by the ICAC and the Immigration Department, into the sale of a document called an “Acknowledgement of Application for a Hong Kong Permanent Identity Card”, commonly known as a “Temporary Identity Card” (“TIC”).

2.The applicant claimed to be in the gravestone photo business and at the same time would assist others to obtain TICs at the price of $3,500 each and for extensions of such TICs at $1,500 per extension.

3.On two occasions, the applicant supplied TICs to an undercover officer and obtained the requisite payments, having been told that those TICs would be used to facilitate the hiring of illegal workers.

4.The incidents gave rise to four charges of possession of a false instrument against the applicant.

5.On 30 May 2005, the applicant pleaded guilty to the 1^st and 3^rd charges before Judge Chua in the District Court and was sentenced on 1 June 2005 to 32 months’ imprisonment on each charge with 7 months to run consecutively. The total sentence is 3 years and 3 months. The 2^nd and 4^th charges were left in the court file and not to be proceeded without leave.

6.On 27 September 2005, the applicant sought an extension of time for leave to appeal against sentence. The applicant claimed that the delay was the result of his misunderstanding that his previous solicitors would file the necessary notice for him.

The Judge’s Reasons for Sentence

7.The judge emphasized the seriousness of the offences. She pointed out that it was easier to forge a TIC than an identity card, particularly the new ones that had additional security features. On the other hand, the TIC served the same purpose as an identity card by allowing, for example, mainlanders to work, thus taking away employment from Hong Kong residents.

8.In the circumstances, visitors would be able to obtain illegal employment and employers could exploit the situation by hiring those illegal workers.

9.The judge further pointed out that TICs would only be valid for one month and thus the applicant’s service would be required when extensions of such TICs were sought.

10.The judge took the view that in the absence of a tariff, she should obtain guidance from HKSAR v Huynh Bat Muoi [2001] 4 HKC 643, a case concerning the procuring of a forged passport for an illegal immigrant where the Court of Appeal indicated that an appropriate starting point was three and a half years to four years’ imprisonment.

11.The judge further took the view that a deterrent sentence was called for, as a flood of forged TICs in the wrong hands would have serious repercussions on the economy and infrastructure of Hong Kong.

12.In deciding to adopt a starting point of four years, the judge also pointed to the applicant’s previous convictions, including convictions for possession of forged documents, seals and dye for which he had been sentenced to 22 months’ imprisonment.

Grounds of Appeal

13.The only ground put forward by Mr David Boyton, on behalf of the applicant, is that the judge erred in comparing the case with Huynh Bat Muoi (supra), which was a case of sale/supply of false passports or travel documents to facilitate illegal immigrants to enter a foreign country through Hong Kong.

14.Mr Boyton emphasizes that the offence in this case did not involve any international movement of illegal immigrants and was purely a domestic matter. Mr Boyton suggests that the judge should have adopted a lower starting point of three to three and a half years’ imprisonment when she found that the applicant’s main intention was to enable his “clients” to take up illegal employment in Hong Kong.

Discussion

15.As the Court of Appeal has observed in HKSAR v Li Chang Li [2005] 1 HKLRD 865, the problem of mainlanders illegally remaining in Hong Kong with the use of forged identity documents is serious and prevalent. Visitors, who otherwise would not be entitled to seek employment, would use these false documents to stay and work in Hong Kong, taking away job opportunities of local residents and thus creating serious social and economic problems.

16.Thus for simple possession of a forged identity card by a visitor, a starting point of 18 months is called for. We reject Mr Boyton’s submission that the reasoning in HKSAR v Li Chang Li (supra) does not apply.

17.The applicant, of course, was in the business of supplying TICs to people who wished to remain in Hong Kong illegally. The number of people who wished to remain in Hong Kong illegally and the need to renew their TICs once a month meant that the applicant’s business was likely to be brisk.

18.We agree with the judge’s observation that the applicant’s conduct must be deterred.

19.On the other hand, we are persuaded that supplying TICs is not as serious an offence as the supply of false passports, which calls for a starting point of four years.

20.We are persuaded that a starting point of 3 years and 6 months is adequate to reflect the seriousness of the offence and is a sufficient deterrent sentence.

21.With the one-third discount for the guilty plea, the proper sentence for each of the two charges is 28 months’ imprisonment. We do not see any reason not to following the judge’s approach by ordering a consecutive term of 7 months.

22.We therefore grant the applicant extension of time to apply for leave to appeal against sentence. Treating the application as the appeal proper, we allowed the appeal and substitute a sentence of 28 months’ imprisonment for each of the two charges and order 7 months of the sentence on the 3^rd charge to run consecutively to that of the 1^st charge. The total sentence is reduced from 39 months to 35 months’ imprisonment.

Mr Gary Lam, SGC of the Department of Justice for the Respondent.

Mr David Boyton instructed by Messrs K H Yuen & David Cheung for the Applicant.