HKSAR v. Tan Luping

HCMA70/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 70 OF 2008

(ON APPEAL FROM STCC 7385 OF 2007)

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Before : Hon McMahon J in Court

Date of Hearing : 27 February 2008

Date of Judgment : 27 February 2008

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J U D G M E N T

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1.The appellant was convicted on his own plea of an offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115, being the 1^st charged offence, for which he was sentenced to 2 months’ imprisonment; of an offence of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap. 200, the 2^nd charged offence, for which he was sentenced to 12 months’ imprisonment, and of an offence of using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177, the 3^rd charged offence, for which he was sentenced to 15 months’ imprisonment.  All sentences were ordered to run concurrently resulting in a total sentence of 15 months’ imprisonment.  The unrepresented appellant now appeals those sentences on the ground that they are too severe.

2.The facts of the case were that the appellant was a mainland visitor who entered Hong Kong legally on 25 June 2007.  He was permitted to remain for seven days and the condition of his stay was that he was not to take up employment in Hong Kong.  The appellant in early July 2007, approached a Hong Kong metal recycling company seeking employment.  He produced a forged acknowledgement of application for a Hong Kong permanent identity card in his own name, which was purportedly issued by the Hong Kong Immigration Department when he was interviewed for employment with the company.  He was offered the job and on 5 July 2007 commenced work with the company at a salary of $9,000 per month.

3.Later that month he presented a forged permanent identity card to the company, which was again in his name and gave particulars which matched with those in the forged acknowledgement of application document.  The appellant remained in Hong Kong working with that company until 17 September 2007 when he resigned.  He was arrested by the police on 18 September.

4.The appellant’s mitigation before the magistrate was, apart from his plea of guilty, to the effect that he had come to Hong Kong and committed these offences out of financial need.  He said he and his son lived in poverty in the mainland. 

5.The magistrate sentenced on the following basis.  He said .

“      Although a series of offence was committed I considered it was possible to sentence the appellants criminality by a global figure of fifteen months, which is the normal sentence for the third Charge alone, I considered this reflected the seriousness of the offences committed by the Appellant and also gave recognition to his personal circumstances and the necessity of his returning to support his son in Guangzhou.”

6.The totality of sentence imposed on the appellant cannot be complained of.  If anything, given the fact that for some reason the appellant had produced two forged documents to his employer, the sentences imposed by the magistrate could be said to be lenient.  In any event, the sentences do not exceed the parameters appropriate after a plea of guilty. 

7.HKSAR v. Li Chang Li [2005] 1 HKLRD 864 was a case where a mainlander had entered Hong Kong with the intention of seeking employment for which purpose she possessed a forged Hong Kong identity card.  The Court of Appeal said :

“In the absence of exceptional circumstances, the sentence upon guilty plea for possessing a forged identity card or a card 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 displayed or used for seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon plea should be 15 months’ imprisonment. ...”

8.The appellant has raised once again before me humanitarian concerns about his son’s well-being in the mainland.  Unfortunately this is a circumstance common to many individuals imprisoned in Hong Kong and cannot be described as so exceptional as to warrant any further reduction in sentence.

9.The present sentences were not too severe or excessive and the appeal was dismissed.

Mr Raymond Cheng, SGC of the Department of Justice, for the Respondent

Appellant in person