HKSAR v. Majid, Hussain

HCMA695/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.695 OF 2006

(ON APPEAL FROM KCCC 3449 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 21 September 2006

Date of Judgment : 21 September 2006

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J U D G M E N T

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Charges

1.The appellant pleaded guilty to the following three charges before a magistrate :

(a) Breach of Condition of Stay (overstaying), contrary to section 41 of the Immigration Ordinance, Cap.115;

(b) Theft of a Hong Kong Identity Card, contrary to section 9 of the Theft Ordinance, Cap.210; and

(c) Possession of Identity Card Relating to Another Person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.117.

After hearing mitigation the learned magistrate sentenced the appellant to prison with the respective terms of (a) six months, (b) two months and (c) 15 months, all terms to run concurrently.

2.The appellant now appeals against the sentences.

The admitted facts

3.The admitted facts disclosed that on the day in question, during a stop and search, the appellant presented a HKID Card (in the name of Mumtaz Khalid) to the police, claiming to be the owner of that HKID Card.  The policeman saw that the photograph on the said card did not look like the appellant and conducted a check.  The result of the check was that the said HKID Card was confirmed to be an invalid one.  Upon questioning, the appellant told the police that he was an overstayer since 2003 and the said HKID Card belonged to his friend.  The appellant was arrested.  Under caution, he admitted he had been overstaying in Hong Kong for three years.  The appellant later presented a passport (in the name of Majid Hussain) to the police which showed that the appellant entered Hong Kong on 11 January 2003 and he was only allowed to stay until 31 January 2003.  During a record of interview, the appellant admitted he stole the said HKID Card from a friend on 1 June 2006 at a place in Tsim Sha Tsui.

The magistrate’s findings

4.The learned magistrate was aware of the appellant’s previous clear record and his personal circumstances when mitigation was advanced.

5.The learned magistrate referred to HKSAR v. Li Chang Li [2005] 1 HKLRD 864, in which the Court of Appeal laid down the following guidelines :

“In the absence of exceptional circumstances, the sentence upon guilty plea for possessing a forged identity card or a cord belonging to another should be 12 months’ imprisonment, irrespective of whether the offender was lawfully staying in Hong Kong.  Where such an identity card was displaying or used for seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon plea should be 15 months’ imprisonment. ….”

The learned magistrate found that in the present case the appellant displayed the stolen identity card to a police officer in order to conceal his illegal status in Hong Kong.  He was of the view that the appellant used the said identity card to further his illegal stay here.  The circumstances fitted the scenario envisaged by the Court of Appeal.  The learned magistrate was of the view that there was no special reason in the appellant’s case and he imposed a total prison term of 15 months on the appellant.

Grounds of appeal

6.The appellant conceded that he could not challenge the sentence on appeal.  He tried to ask the court to be humane and allow him to go back to Pakistan because of the circumstances of his mother.  The appellant said his mother had always suffered from diabetics but her condition was not very serious when he came to Hong Kong.  After he was sent to jail, he learned that his mother is also suffering from heart problem.  He said his mother is old and alone, so he would like to go back to Pakistan earlier.            

7.The appellant adduced something which purported to be a medical certificate from Pakistan.  It is in English, and it certified a particular lady was suffering from DM (which I take to be diabetes mellitus) and something about depression.  It is not exactly clear what this lady was supposed to be suffering from but certainly nothing about heart disease.  Interestingly, the doctor wrote : “She needs supporting behaviour from her family members.”  It would appear that she was shocked when advised about something.  So, it seems that she was shocked to learn the appellant being sent to jail. 

Conclusion

8.Bearing in mind that the appellant has been in Hong Kong since 2003 and leave his mother alone in Pakistan, I do not see how his mother’s condition could be a special reason when the appellant chose to leave behind an aged sick mother and come to Hong Kong.  I am not convinced that the circumstances as disclosed by the appellant are such that amount to special reasons or humanitarian grounds to depart from an otherwise proper sentence.

9.The appellant’s appeal against sentence is dismissed.

Mr Leung Cheuk Yin, David, SGC of Department of Justice, for HKSAR

Appellant in person, present