HKSAR v. Supadjo Suprapti

HCMA418/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 418 OF 2010

(ON APPEAL FROM KCCC 1717 OF 2010)

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Before : Hon McMahon J in Court

Date of Hearing : 15 July 2010

Date of Judgment : 15 July 2010

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J U D G M E N T

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1.This is an appeal against sentence only.  The appellant was convicted on her own plea of an offence of using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177 (the 1^st offence) and to two offences of breaching a condition of her stay in Hong Kong, contrary to section 41 of the Immigration Ordinance, Cap.115.  The latter offences involved her overstaying the period she was allowed in Hong Kong by some four years (the 2^nd offence), and relating to her taking up of employment in March 2010 at a restaurant (the 3^rd offence). 

2.The appellant was sentenced to 15 months’ imprisonment in respect of the 1^st offence, to 4 months’ imprisonment in respect of the 2^nd offence, and to 2 months’ imprisonment in respect of the 3^rd offence.  The sentences imposed in respect of the 2^nd and 3^rd offences were ordered to run concurrently but to run consecutively to the sentence imposed in respect of the 1^st offence.  That resulted in a totality of sentence of 19 months’ imprisonment.  

3.The sole ground of appeal advanced by the appellant is that those sentences were too severe.

4.The facts are succinctly set out by the magistrate as follows :

“2. According to the brief facts, the Appellant was one of the illegal workers found by the police working in a seafood restaurant at Yau Ma Tei, Kowloon on 15 April, 2010. She was unable to produce any proof of her identity and when the police later checked the staff record and the photocopy of her HKID card, it was found that she did not resemble the person shown on it. Upon initial enquiry, the appellant admitted that she was not the person as stated in the copy HKID card and she was thus arrested at scene. Under caution, she further admitted that she had borrowed a HKID card in the name of another person from an unknown female for seeking employment as a cleaner. She used the HKID card and successfully applied for the job in the restaurant on 29 March, 2010. She returned it to the unknown female after the job interview.

3.       Immigration Department confirmed that the appellant was previously a domestic helper and her employment contract was terminated.  The appellant was given extension of stay until 15 August 2005. As such, she has overstayed in Hong Kong for more than 4 years already before she was arrested.  Furthermore, she was not allowed to take up any employment in Hong Kong without the permission of the Director of Immigration Department.”

5.As the magistrate rightly observed, the using of another person’s identity card is a serious offence.  In HKSAR v Li Chang Li (2005) 1 HKLRD 865, the Court of Appeal said (at p.869) :

“(2) Identity cards in themselves are not collectors’ items. Those who were found possessing forged identity cards or identity cards belonging to others must be taken to have the intention of concealing their identity and seeking unlawful employment in Hong Kong. It was irrelevant whether these people were staying in Hong Kong lawfully, although unlawfully remaining in Hong Kong was a separate offence for which offenders would receive appropriate punishment.

…

(4)    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.  Where there were exceptional mitigating factors, the court should exercise discretion as appropriate in determining sentence.”  [Emphasis added]

6.In my view, in this case, there are no exceptional mitigating factors.  That put forward before me was to the effect that the appellant had been urged to seek employment at the restaurant by the woman who provided her with the identity card.  The reason being that that woman ran a business of some sort by which she charged for the use of such identity cards.  I do not think whether or not the appellant might otherwise have returned to her home country Indonesia is something which mitigates this offence. 

7.The magistrate was right to regard the overstaying of the appellant for more than 4 years commencing in August 2005 as being, in the circumstances of this case, an offence warranting a separate penalty, although it may well be that in other cases where the use of a false or another person’s identity card is effective in allowing the individual to overstay in Hong Kong for only a short period considerations of totality of sentence may result in a wholly or partly concurrent sentence. 

8.In the present case the overstaying offence had commenced in August 2005 and the use of the identity card occurred in March 2010.  The two offences were rightly regarded by the magistrate as being separate for the purposes of sentence.

9.In the circumstances of this case, I am satisfied that the sentences either individually or in their totality are not manifestly excessive or too severe and the appeal is dismissed.

Mr Thomas Law, SADPP of the Department of Justice, for the Respondent

Appellant in person, present