The Queen v. Lam Kwok Ching

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 130 OF 1987

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BETWEEN

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Coram: Hon. Garcia, J. in Court

Date of hearing: 2nd April 1987

Date of delivery of judgment: 2nd April 1987

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JUDGMENT

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1. The appellant pleaded guilty to five charges of using an identity card relating to another person contrary to the Registration of Persons Ordinance, and Regulation 12(3) of the Regulations make thereunder.

2. The brief facts giving rise to the charges and which are not in dispute show that the appellant came to Hong Kong from China illegally in September 1985 and after several days here, picked up an identity card which was issued in the name of Hung Shing-fai.

3. Sometime in February 1986, he started to work in the Wai Cheong Shoes Factory and he used this particular card in. order to obtain such employment and to have the requisite particulars entered in the Register of Employees of that company.

4. On 20th August, .he used the same card to obtain accommodation in a flat at Castle Peak Road.

5. The appellant left the shoe factory on the 25th August 1986 and on the 4th October 1986, he applied for another job in a plastic factory. He was given employment in that factory and he used this identity card to obtain the job and in order to have details of it recorded in the register of employees.

6. On 2nd November, he used the same card in order to rent accommodation in another flat, that is in 432 Castle Peak Road.

7. At about 10:00 a.m. on 15th January this year, he was stopped in Wo Yi Hop Road near the junction of Ta Chuen Ping Street, by a police officer who asked for his identity card. He produced the identity card in the name of Hung Shing-fai and upon it being checked, the card was found to belong to another person.

8. The magistrate in imposing the sentences of 15 months imprisonment in respect of the 1st to 4th charges, followed the principles of the Lau Chung Kwan case but insofar as the 5th charge was concerned, the facts of which were no different from the 1st to the 4th charges, he imposed a sentence of 18 months imprisonment to run concurrently with the other sentences. His reason for doing so is : "For his repeat offences;1 thought merited somewhat more than the sentence of 15 months tariff for those who only answer to one similar charge."

9. Whilst the magistrate was correct in imposing the sentences of 15 months imprisonment in respect of the first four charges following Lau Chung Kwan and Lee Sun-sui his departure from the tariff requires cogent and convincing reasons for doing so. It is difficult to draw any firm conclusions as to which of the five charges is the more culpable and more serious to attract a heavier sentence.

10. In Lee Sun-sui, where the facts are almost identical with those relating to the 5th charge in this case, the magistrate took into account the defendant's similar previous conviction for which he received a sentence of 6 months imprisonment. In a subsequent appeal against sentence, which was dismissed, the Chief Justice contemplated increasing the sentence on the ground that the appellant had a previous conviction for a similar offence but decided against this course, because some exceptional humanitarian considerations were advanced by the appellant. The appellant in the instant case has a clear record and in my view, the reason advanced by the magistrate for departing from the tariff finds no support in Lee Sun-sui. The contrary view appears in the case of Lau Chunq Kwan and the following passage though obiter taken from the judgment of Clough, J.A. militates against the approach adopted by the magistrate : "Mr Smith argued that a person found in possession of a number of forged identity cards should be charged on separate counts in respect of each card. We do not agree. But even if such a person was so charged, we consider that the effective sentence should be the same as if there were only one count."

11. The principle which may be gathered from this passage is that a similar sentence ought to be impused in respect of each of the charges laid against the appellant.

12. This appeal is therefore allowed to the extent that a sentence of 15 months imprisonment is substituted for that of 18 months imposed on the appellant on the 5th charge, to be served concurrently with the other sentences on the 1st to the 4th charges.

Miss E. Chan for the Crown/Respondent

Appellant in Person