HKSAR v. Zheng Yuhua

HCMA984/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 984 OF 2008

(ON APPEAL FROM ESCC 4863 OF 2008)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 17 February 2009

Date of Judgment : 17 February 2009

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JUDGMENT

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1.This is an appeal by the appellant against the sentence of 12 months’ imprisonment imposed on her by Mr Garry Tallentire at Eastern Magistrates Court on 15 October 2008 following her plea of guilty to a charge of using a forged Hong Kong identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177.

2.The facts put before the magistrate and admitted by the appellant were that on 11 October 2008, she had produced a forgedHong Kong identity card in the name of Wei Hong Bing and also a Cotai Reward Club membership card in the same name at the Chu Kong Shipping Company in the Shun Tak Centre in order to obtain four free ferry tickets from Hong Kong to Macau.

3.The manager found the quality of the identity card was poor and so he called the police.  The appellant left before the police arrived but three days later returned with a Chinese identity card in her real name in order to obtain the free tickets.  It is accepted that the appellant was lawfully in Hong Kong.

4.The learned magistrate bore in mind that the appellant was a woman of 43, a university graduate of previous good character and had used the forged identity card to obtain free ferry tickets.

5.In his Statement of Findings, the learned magistrate said :

“In my opinion this was a typical case of its kind and I could see no compelling reason to depart from the usual guidelines.  Therefore I sentenced the defendant to 12 months imprisonment.”

6.Mr Wong for the appellant accepts that the sentence could not be criticised if the situation was one to which the Court of Appeal’s guideline in HKSAR v. Li Chang Li [2005] 1 HKLRD 864 applied, but he argued that the learned magistrate failed to take into account that Li Chang Li did not prevent the sentencer from taking into account circumstances where the object of the offender possessing the forged identity card was not to conceal her true identity so she could work illegally in Hong Kong or unlawfully entertain her stay in Hong Kong.  He argued that the appellant in this case did not possess or use the forged identity card for the purpose of obtaining employment or extending her stay in Hong Kong but simply to obtain four free ferry tickets.

7.I accept Mr Wong’s submission that the guidelines in Li Chang Li are directed at a case where a defendant possesses or uses a forged identity card for the purpose of working in Hong Kong or unlawful furthering his stay here.

8.But as the court said :

“        Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.  It follows that people who possess forged identity cards or identity cards belonging to others must be doing so for the purpose of concealing their true identity so that they can work illegally in Hong Kong.  This is so whether their presence in Hong Kong is lawful or not.”

9.By the use of the term “generally speaking” the court was accepting that there could be unusual circumstances when a defendant possessed an identity card for some other purpose.  However the normal inference in the absence of persuasive evidence to the contrary would be that a person who had a forged identity card in his possession had it for those purposes. 

10.I am satisfied that on the information put before him at the time the magistrate was entitled to conclude that the fact that she may have been using the forged identity card to obtain free ferry tickets did not prevent him draw an inference that this was a typical case where the appellant’s main purpose in possessing a forged identity card must have been to work or remain in Hong Kong illegally.

11.Since Mr Wong insisted that the appellant’s sole purpose in possessing the forged identity card was to obtain four free ferry tickets, I permitted him to call the appellant to give evidence.  She gave evidence that she is a resident of Shenzhen who often visits Hong Kong on a seven-day permit and frequently visits Macau in order to gamble.  As a result of the volume of her gambling she became entitled to a Cotai Reward Club membership card which entitles the holder to four free ferry tickets from Hong Kong to Macau each day as well as free meals and accommodation in Macau.  The ferry tickets would normally cost approximately $150. 

12.She said that during her visits to Macau she had met a woman named Wei Hong Bing, a fellow gambler, with whom she became friendly.  Wei Hong Bing was also a holder of the Cotai Reward Club membership card.  During a visit by the appellant to Macau in around September 2008, Wei Hong Bing had asked her to obtain free ferry tickets for her friends on her behalf using her, rather than the appellant’s, membership card when the appellant next visited Hong Kong.  She had given Wei Hong Bing her photograph.

13.The appellant said that she arrived in Hong Kong either on 10 or 11 September 2008 having informed Wei Hong Bing of that fact.  On the morning of 11 October 2008, Wei Hong Bing had arranged for a friend to deliver her Cotai Reward Club membership card and the forged identity card to the appellant at the Shun Tak Centre.  Four other friends of Wei Hong Bing whom the appellant did not know were also present at the time waiting.  They would take the tickets after she had obtained them.  It was in such circumstances that she had used the forged identity card in order to obtain the free ferry tickets.

14.I do not accept that I was being told the whole truth by the appellant about this matter.  I do not believe that Wei Hong Bing would have gone to the trouble and expense of obtaining a forged identity card for the appellant simply for her to obtain four free ferry tickets on one occasion.  The appellant herself admitted that she had not decided whether to go to Macau on 11 October 2008.  If she was not travelling then she could have obtained four free tickets on her own card which she could have given to Wei Hong Bing’s friends.  A forged Hong Kong identity card would not have been obtained simply on the off chance that the appellant herself wanted to travel to Macau on a particular day.  I cannot however exclude the possibility that the purpose of obtaining the forged Hong Kong identity card or at least its main purpose was to obtain fraudulent benefits on a wider basis by using the Cotai Reward Club membership card in the name of Wei Hong Bing.  Even if that had been the purpose there was still the latent risk that the appellant might have succumbed to the temptation to use the card to extend her stay in Hong Kong or obtain employment.

15.I am satisfied that the fraudulent purpose for which the appellant obtained the card coupled with the latent risk that the appellant might use the card to prolong her stay in Hong Kong or seek employment would themselves have justified the sentence passed by the magistrate.

16.There are no other circumstances that justify a reduction in the appellant’s sentence.  I dismiss the appeal against sentence.

Mr Jones Tsui, PP of the Department of Justice, for the HKSAR

Mr Wong Hay Yiu, instructed by Legal Aid Department, for the Appellant