HKSAR v. Zhang Minghua

HCMA547/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.547 OF 2006

(ON APPEAL FROM STCC 4286 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 22 September 2006

Date of Judgment : 22 September 2006

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J U D G M E N T

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1.The appellant pleaded guilty to one charge of using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177; and one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap.115.  She was sentenced to concurrent terms of 15 months and 6 weeks’ imprisonment respectively.  She now appeals against the sentences.

2.Immigration officers, during a raid at a restaurant, found the appellant serving food.  Under caution, she admitted that she paid RMB300 to a clansman in Shenzhen for a forged identity card.  She used that after she entered Hong Kong on the strength of a two-way permit to secure a job at the restaurant with a monthly salary of $6,800.  She worked there for about two months prior to her arrest.

Grounds of appeal

3.The appellant urged this court to reduce her sentence on the grounds that her mother, now aged 85, who suffered a stroke three years ago, was worried about her.  The appellant wants to be able to go back to China to spend New Year with her mother. 

Respondent’s reply

4.Counsel for the respondent submitted that according to the existing authorities, 15 months’ imprisonment is an appropriate sentence on a guilty plea if there is a link between the offender’s status and the forged ID card.  The appellant having used the card to secure employment, the link was established.  It is submitted that the sentences are neither manifestly excessive nor wrong in principle.

My judgment

5.The magistrate correctly considered the cases of R v. Shameen Nawaz, HCMA804/1993 and HKSAR v. Li Chang Lee, HCMA935/2004.  They effectively decide if there is a link between the defendant’s status in Hong Kong and the forged identity card, 15 months’ imprisonment on a plea of guilty is the appropriate sentence.  The link has clearly been established in this case, the appellant admitted to have used the forged identity card to secure employment. 

6.I consider that the 15 months’ imprisonment in relation to Charge 1 an appropriate sentence.

7.In respect of Charge 2, according to the case of HKSAR v. Xie Chun Mei [2004] 1 HKLRD 865, 2 months’ imprisonment on a plea of guilty was said by the Court of Appeal to be an appropriate sentence for a two-way permit holder to have entered Hong Kong lawfully but taken up employment against the condition of stay.

8.The magistrate was unduly lenient in imposing the sentence as he did in relation to Charge 2 and ordering such to run concurrently, and according to authorities, medical condition of aged parents which were already been known to defendants who chose to set foot in Hong Kong cannot constitute humanitarian grounds for reduction of sentence.

9.The sentences could not be said to be excessive in the circumstances of this case.  I affirm the sentence and dismiss the appeal.

Mr Henry Hung, GC of the Department of Justice, for the Respondent

The Appellant, in person