HKSAR v. Wu, Zixuan

HCMA912/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 912 OF 2008

(ON APPEAL FROM ESCC4247/2008)

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BETWEEN

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Before:  Deputy High Court Judge Longley in Court

Date of Hearing:  20 February 2009

Date of Judgment:  20 February 2009

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J U D G M E N T

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1.This is an appeal by the Appellant against the sentence of 15 months’ imprisonment imposed upon her at Eastern Magistrates’ Court following her plea of guilty to charge of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177.  The Appellant has abandoned her appeal against conviction, which was dismissed.  

2.At the time of the sentence against which she now appeals the Appellant had also been sentenced to a concurrent term of 2 months’ imprisonment in respect of a charge of breach of her conditions of stay by overstaying.  She does not appeal against that sentence. 

3.The facts before the magistrate, which were admitted by the Appellant, were that when inspecting the Appellant’s two-way permit a police officer found a Smart Hong Kong Identity Card bearing the Appellant’s photograph but the name of somebody else.  The Appellant claimed that her brother had bought the forged identity card for her to use to enable her to study in Hong Kong, but she had not been able to find a school. 

4.In passing sentence the magistrate said this:

“The authorities on sentence are clear that, except in exceptional circumstances, an immediate custodial sentence of 15 months’ imprisonment was appropriate for offences involving forged identity cards.  It matters not whether the offender is an overstayer or an illegal immigrant.  The issue is whether there is a link between the offender’s status in Hong Kong and the use or possession of the forged identity card. Here, her possession of the forged identity card was for the purpose of finding a school placement here in Hong Kong.  There were no exceptional circumstances to warrant departing from the sentence of 15 months’ imprisonment that is the norm on a plea of guilty even for a first offender.”

5.The only ground of appeal relied upon by Mr Wilson Lau for the Appellant is that in the light of the judgment of the Court of Appeal in HKSAR v Li Chang Li, HCMA935A/2004, [2005] HKLRD 864, the magistrate erred in adopting a starting point of 15 months after plea rather than 12 months as there was no evidence to suggest that the Appellant had produced or used the forged identity card to work illegally or unlawfully to further her stay in Hong Kong. 

6.Miss Kam for the Respondent accepts that there was no evidence of the use of the card for either of those purposes and that the appropriate sentence after plea should have been one of 12 months’ imprisonment.

7.I am satisfied, therefore, that the Appellant’s submissions are well founded and that the magistrate was mistaken in saying that, save in exceptional circumstances, an immediate custodial sentence of 15 months’ imprisonment was appropriate for offences involving forged identity cards.  That is only correct if the offender has actually produced or used a forged identity card to work illegally or further his or her stay in Hong Kong.

8.In this case a starting point of 12 months’ imprisonment after plea was appropriate.  I accordingly allow the appeal against sentence and

order that there be substituted for the term of 15 months’ imprisonment a term of 12 months imprisonment.

Representations:

Miss Teresa Kam, SPP of the Department of Justice, for the Respondent

Mr Wilson W S Lau, instructed by James Ho & Co., for the Appellant