HKSAR v. Xu Zhili

HCMA 612/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 612 OF 2010

(ON APPEAL FROM ESCC 3019/2010)

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 8 October 2010

Date of Judgment: 8 October 2010

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate’s Court on one count of possession of a forged identity card and one count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2.On charge 1, she was sentenced to 12 months’ imprisonment, on charge 2 to 15 months’ imprisonment.  Both sentences to be served concurrently.

3.She was also in breach of a suspended sentence which had been imposed on her in 2009 when she was in Hong Kong and charged with breach of condition of stay.  The learned Magistrate then activated that sentence and ordered that the 28 days to be served consecutive to the 15 months’ imprisonment imposed.

4.The facts disclosed that when the Police Officers were conducting a licence check at a mahjong parlour in Wanchai at about 11:00 pm at night on 17 July, the Appellant had produced a forged Hong Kong identity card to the police officers for inspection.

5.The Appellant was arrested and under caution she admitted that she had bought the forged identity card in Shenzhen for RMB 400.00, and had sneaked into Hong Kong in early July after paying RMB1,800.00 for the journey.

6.The Appellant is 46 years old.  In mitigation, it was submitted that she was married to an elderly man in Hong Kong who was in his 70’s and had recently been admitted to an elderly home.

7.And it was urged upon the learned Magistrate that she wanted to take care of her husband in his old age.  The learned Magistrate properly considered the case of Li Chang-li [2005] 1 HKLRD 864 where it was held that the proper starting point on a plea of guilty is 12 months’ imprisonment for possession of a forged identity card.

8.The learned Magistrate considered that there was no mitigation or justification for any humanitarian considerations.

9.The learned Magistrate then sentenced the Appellant to 12 months’ imprisonment for the forged identity card charge and 15 months’ imprisonment for illegally remaining in Hong Kong and both sentences to be served concurrently.  There being no exceptional circumstances, the learned Magistrate activated the suspended sentence and ordered that it be served consecutively to the 15 months’ imprisonment.

10.The Appellant had submitted a letter to the learned Magistrate on setting out her background and that she had married the Hong Kong man who is 30 years older than her in 2006.  Her husband was suffering from senile dementia and that his children had disputed with the Appellant regarding his money and she also said that she wanted to bring her husband back to the Mainland and go through the formalities.  She was worried she won’t see her husband if she is in prison for a long time.

11.She also then submitted that she had a 21-year-old son and in his third year of university study in the Mainland.  She had to pay his tuition and living expenses.

12.On appeal, the Appellant had again re-iterated that she had to support her son and hope that she can be released early so that she can return to China to earn money to support her son.

13.She also maintained that she came to Hong Kong to look after her husband who is in a home for the elderly and she had been found in a mahjong parlour because she needed to earn some money.

14.The learned Magistrate had borne all these in mind before she sentenced.  The Appellant said that her son would not have her financial support if she is in prison.  The Appellant knew about these before she made the decision to come to Hong Kong illegally with the forged identity card.  If she loves her son so much, she would have stayed in China, earn the money and keep him in school. 

15.So I cannot see any grounds to interfere with the learned Magistrate’s sentence and the appeal is therefore dismissed.

Mr Edward J Brook, Senior Public Prosecutor of Department of Justice, for the Respondent

The Appellant,  in person