HKSAR v. Gurbinder, Singh

HCMA644/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 644 OF 2009

(ON APPEAL FROM NO. ESCC 2940 OF 2009)

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BETWEEN

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Before: The Honourable Madam Justice Beeson

Date of Hearing:  30 September 2009

Date of Judgment:  30 September 2009

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J U D G M E N T

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1.This Appellant pleaded guilty in the Magistracy to one count of Possession of an Identity Card relating to another person, contrary to section 7A(1)(a) of the Registration of Persons Ordinance, Cap. 177. He was sentenced to 12 months’ imprisonment and appeals against that sentence on the grounds that it was too severe.

2.The facts admitted by the Appellant disclose that he was seen acting suspiciously by a police officer. He was intercepted and searched. The identity card the subject matter of these proceedings was found on his person, and the Appellant told the police officer he had bought the card for $2,000 from an unknown male. The identity card was examined by a forensic scientist, who gave his opinion that it was a genuine identity card.

3.In mitigation before the magistrate the Appellant, who acted in person, told the magistrate that he was aged 27 and had a clear record. He wanted to return to India as soon as possible because his wife and children had already returned there. The magistrate found no exceptional circumstances which would warrant a departure from the sentence of 12 months’ imprisonment that is the norm for a plea of guilty even for a first offender, whether or not the offender is lawfully in Hong Kong. [HKSAR v. Li Chung li [2005] 1 HKLRD 866]

4.The Appellant applied on 8 July 2009 for a review of the sentence on the ground that it was too severe. He told the magistrate that his wife had given birth to his younger child while she was in Hong Kong and complained of stomach pain after the birth. She returned to India with the children and was there told by a doctor that she needed complete bed rest, otherwise she might need a further operation. The Appellant told the magistrate that his wife’s condition was serious, and for that reason he wished to return home to India as soon as possible. The magistrate could find no exceptional circumstances and refused the application for leave to review the sentence.

5.Today before me the Appellant repeated what he told the magistrate. He produced photographs of his wife and children, and said he wished to go back to India because his wife had had an operation and she was in hospital. He said he did not object to the sentence in itself, but he wanted to go back to India so he could care for his wife and sons.

6.I have considered the facts of the case and the matters put before the magistrate. I note that the Appellant’s wife returned to India on 9 April 2009. The Appellant was arrested for this offence on 18 June 2009. It is not clear why he had not returned to India earlier, if indeed his wife was as ill as he said.

7.There are no exceptional circumstances or special mitigating factors which justify my interfering with the sentence. The appeal against sentence is dismissed.

Mr David Leung, SADPP (Ag.) of the Department of Justice, for the Respondent

Appellant, in person