HKSAR v. Ouyang, Ming

HCMA 834/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 834 OF 2008

(ON APPEAL FROM STCC 5049/2008)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 11 February 2009

Date of Judgment: 11 February 2009

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J U D G M E N T

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1.The Appellant had pleaded guilty to three charges.  The 1^st charge is overstaying; the 2^nd charge is using a forged identity card; and the 3^rd charge is taking up unlawful employment.

2.The fact revealed that the Appellant had used a forged identity card to successfully seek employment at a metal workshop in Kwun Tong on 30 June 2008.  He was found working there on 16 July 2008.

3.The Appellant had a clear record in Hong Kong.  In mitigation, he said that he came to Hong Kong to seek unlawful employment because he wanted to get money to help his wife who was suffering from breast cancer.  Therefore, his reason for coming to Hong Kong to seek employment was really out of financial difficulties.

4.The learned Magistrate after hearing mitigation, considered the case of HKSAR v. Li Chang Li, HCMA 935A of 2004 which lays down that a 15 month prison term upon a plea of guilty should be imposed for those using forged identity card to take up unlawful employment in Hong Kong.  The learned Magistrate considered that there was no exceptional circumstances for him to depart from this sentence.

5.The Appellant appeared, in person, on the appeal, and again repeated his mitigation in the court below about his wife’s illness and his hope for the court’s sympathy.

6.These offences are very serious offences, particularly using a forged identity card, and the Appellant like many many people before him, has come to Hong Kong to seek unlawful employment because of financial difficulties, and he has created chaos in the labour market in Hong Kong and deprived Hong Kong people of jobs which would have gone to them.  So the court has to take a serious view of people who use forged identity cards to seek employment.  Even though the court may have sympathy with a particular defendant’s background, it is clear that the current sentences are necessary in these cases.

7.The Magistrate was not wrong in imposing the 15 months' overall sentence on the Appellant.  I can see no reason for interfering with that sentence.  The appeal is dismissed.

Ms Kathie Cheung, Senior Public Prosecutor, for the Respondent

The Appellant in person