The Queen v. Fong Pan

M.A. No. 480 of 1993

HEADNOTE

Criminal Law and Procedure - sentence - using identity card relating to another person - whether use by illegal immigrant to obtain employment justifies enhanced sentence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 480 OF 1993

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BETWEEN

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Coram : The Hon. Mr. Justice Leonard in Court

Date of Hearing : 24th August 1993

Date of Delivery of Judgment: 24th August 1993

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate to three charges as follows :-

(A) Remaining in Hong Kong without authority

(B) Theft

(C) Using an identity card relating to another person.

On charge A, he was sentenced to 15 months’ imprisonment, on charge B to 4 months’ imprisonment concurrent, and on charge C to 4 months’ imprisonment which was to be consecutive to the other two. That made an effective total of 19 months.

2. The brief facts were that on the 20th of May 1993, the appellant was stopped in Yaumatei and admitted to being an illegal immigrant. He was found to be in possession of a cheque issued by Wei Ken Industrial Co. and a salary receipt in the name of Chan Shiu-yin. He told the police officer that he had just picked them up. Enquiries revealed that on the 7th of May, the appellant had approached the Wei Ken Industrial Co. produced an identity card in the name of Chan Shiu-yin and he was given a job and started work on the 10th of May. He later admitted that he had picked up a Hong Kong identity card in the name of Chan Shiu-yin on the 7th of May together with a bank passbook in the same name. Having used the identity card to obtain a job, he had discarded those items in a litter bin. The cheque from Wei Ken Industrial Company represented his salary.

3. The appellant was a repeat offender, having already been sentenced to a suspended term of imprisonment for a previous offence of illegally remaining in Hong Kong. He was 14 years old at the time of the previous illegal entry which is no doubt the reason why the sentence was suspended. According to the guidelines laid down in So Man King (1989) 1 HKLR 142, the appropriate sentence was about 18 months’ imprisonment on charge A. The magistrate took a global view of the 3 charges and decided that an overall sentence of 19 months would be appropriate. He adjusted the sentences to achieve that result. It has been suggested that the appellant’s previous entry at a young age should have been disregarded. The magistrate approached that matter in a proper way noting that the previous conviction and sentence indicated that the appellant must have entered Hong Kong on the subsequent occasion with his eyes open to the possible consequences of capture. He could not claim by way of mitigation that he was a first offender.

4. Mr. Dennis Law, who appeared on instructions of the Director of Legal Aid for the appellant at the appeal, informed the court that there is some doubt as to whether the use by an illegal immigrant of an identity card to obtain employment constitutes the obtaining of a benefit so as to result in a sentence higher than that which would normally be imposed upon an illegal immigrant who simply used the card in order to show that he was lawfully in Hong Kong. In R. v. So Man King (1989) 1 HKLR 142, the Court of Appeal said in relation to offences committed by illegal immigrants that where there is a plea of guilty, 15 months’ imprisonment should be used as a basic guideline. Strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate. On the other hand, the court should take into account, by upward adjustment, circumstances which may aggravate the offence, including the use of a forged identity card to obtain some benefit. In the case of The Queen v. Lam Sai Ying, Mag. Cr. App. No. 811 of 1991, I had occasion to say that where an identity card was used to obtain employment, it would be open to the magistrate to impose a sentence higher than that of 15 months. As I understand the guidelines of the Court of Appeal, they indicate that if an illegal immigrant does no more than carry an identity card so that he may show it to a law enforcement officer if he is challenged as to his immigration status then there is no ground for enhancing the sentence. Once he uses the card to obtain some benefit, then it is open to the court to impose an enhanced sentence. The main benefit which would enable an illegal immigrant to remain unlawfully in Hong Kong is employment. It is a greater benefit than the opening of a bank account. It follows that producing an identity card in order to obtain employment is the use of that card to obtain a benefit and there is no doubt in my mind that it merits an enhanced sentence.

5. In Or Chun-ping and Others [1992] 2 HKCLR 177, two illegal immigrants had each obtained work and opened a bank account by using a forged identity card. The judge hearing an appeal against sentence in that case did not regard either obtaining employment or opening a bank account as amounting to obtaining the type of benefit which the Court of Appeal had in mind as requiring an upward adjustment of sentence. In R. v. Chan Wun­-sang and another [1993] 1 HKCLR the Court of Appeal referring to Or Chun-ping, said :-

“In our view, the benefits obtained were precisely of the kind that this court had in mind in So Man King.”

6. That remark should have removed any doubt which might have arisen from Or Chun-ping.

7. The total effective sentence is neither manifestly excessive nor wrong in principle. The appeal is accordingly dismissed.

Mr. D. Saw S.C.C. for the Crown.

Mr. Dennis Law instructed by D.L.A. for the Appellant.