HKSAR v. Kwok Siu Fai

HCMA 153/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 153 OF 2011

(ON APPEAL FROM ESCC 5293/2010)

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Before: Deputy High Court Judge Stuart-Moore

Date of Hearing: 8 June 2011

Date of Judgment: 8 June 2011

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J U D G M E N T

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1.On 15 February 2011, following pleas of guilty, the Appellant was sentenced at the Eastern Magistrates’ Court by Henry Mierczak, Esquire, to concurrent terms of 12 months’ imprisonment on 2 charges arising from the use of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177.

2.The admitted facts revealed that on 5 October 2010 the Appellant had presented a forged identity card in the name of Chan Chi-fai in order to apply for a mobile telephone service from CSL.  Later, however, CSL was able to ascertain that the identity card was a forgery so that the application was unsuccessful.  The matter was then reported to the police.

3.On 13 October 2010, the Appellant was led to believe that he needed to return in order to complete his application.  He did so and once again used the forged identity card in the name of Chan Chi-fai.

4.He was duly arrested and he told the police that he was intending to avoid payment on the mobile telephone service he had tried to obtain.

5.The learned Magistrate was told that the Appellant had 7 previous convictions, five of which were for dishonesty, including a matter in 2008 which involved the use of a false instrument when the Appellant received a total sentence on 3 charges of 28 months’ imprisonment.

6.The Magistrate was aware of the guidance offered by the Court of Appeal in HKSAR v Li Chang Li [2005] 1 HKLRD p.864 in which it was said that, in the absence of exceptional circumstances, a sentence for the possession of a forged identity card, following a plea of guilty, should be 12 months’ imprisonment (unless the identity card was displayed or used for the purpose of seeking employment or extending the period of stay in Hong Kong in which case a sentence of 15 months should be considered).  In other words, a distinction was made between the mere possession of a forged identity card and its use.

7.In this case, a notice of appeal was lodged on 18 February 2011, and on 1 March 2011, the Magistrate provided formal Reasons for Sentence in which he set out the facts before saying as follows:

“I was aware of the guidelines as set out in LI Chang Li [2005]1 HKLRD 864, where 15 months was appropriate on a plea of guilty for the possession / use of a forged ID card. However here the appellant is a Hong Kong resident and the forged ID card is not used to further or extend his stay in Hong Kong. Rather it had been used on both occasions to apply for a mobile phone service to avoid payment. The appellant here had filled out false particulars to apply for such service by use of the forged ID card. I regarded the matter very seriously. The card was not used for an innocent purpose.”

8.The Magistrate then added this which, understandably, has been the whole basis of the present appeal:

“I must admit that subsequent to my dealing with the appellant in open court I have become aware of the case of HKSAR v LAU Kam Ling, HCMA 223/2010, which is a Chinese judgement on the sentence of HK residents for the use of a forged ID card. There a starting point of 15 months had been adopted for a single charge of using a forged ID card where the appellant had had knowledge of an entire deception scheme. I was not aware of, nor alerted to, this decision at the time of sentencing.

Had I been aware I would have adopted a starting point of 15 months imprisonment in each of the two matters (instead of the 18 months originally adopted by me in court – which had already been reduced from a starting point of 22½ months as the appellant was a HK resident) and so would have reduced such starting points by one third to reflect the appellant’s pleas of guilty, even though they were not pleas of guilty at first instance. The correct sentence is one of 10 months imprisonment in each case.

Both offences were as a result of the one course of conduct and so should be concurrent.”

9.Mr Neil Mitchell’s able submission on the Appellant’s behalf amounted to a contention that the Magistrate had been in error when he adopted the starting point of 18 months for each of the offences and had acknowledged as much in his formalized sentencing reasons. 

10.On the face of it, with this background, the Appellant has a strong ground for appeal.  As both Ms Cecilia Chan, for the Respondent, and Mr Mitchell accept, the decision in HKSAR v Li Chang Li was not one which was applicable to the facts in the present case as that case related to the possession and use of forged identity cards for the purpose of obtaining employment unlawfully by workers who had no right to work in Hong Kong.

11.The facts in HKSAR v Lau Kam Ling HCMA 223/2010, which is relied upon by Mr Mitchell, were much closer to the facts with which I am presently concerned as, in that case, the Appellant had used a forged identity card for the purposes of a deception.  However, the decision in that case was not a guideline case of any kind as, indeed, was recognized by Deputy High Court Judge P Li when he stated in the penultimate paragraph of the judgment:

“22. Despite the absence of sentencing guidelines for cases of this kind, there is no lack of cases where a starting point of 15 months was adopted for the offence of local resident using a forged identity card to commit crime[1]. As I mentioned in paragraph 21 above, the appellant must have knowledge of the whole deception plan. For this reason, I agree with the magistrate’s decision to adopt a starting point of 15 months.”

12.The footnote in that judgment refers to 3 separate cases, which Ms Chan has looked at individually with a view to illustrating that, with respect to the Deputy High Court Judge in that appeal, all was not quite as simple as it may have appeared from paragraph 22 in his judgment.  I am going briefly to turn to each of those 3 cases referred to in the footnote.

13.In one of those, The Queen v Ho Ding Pang, CACC 710/1996, the applicant had pleaded guilty to two driving offences as well as using a forged identity card in circumstances where the applicant was trying to deceive police officers to conceal the fact that he was a disqualified driver.  The applicant was sentenced to 15 months’ imprisonment to be served consecutively to the other sentences imposed.  In other words, the 15 months’ imprisonment sentence presupposes a starting point of 22½ months after trial and was imposed after the usual one-third discount for the plea.  The Court of Appeal, while commenting that a shorter sentence might have been imposed for the use of the forged identity card, did not interfere with the sentence.

14.A second appeal referred to in the footnote was HKSAR v Kwan Yuen Ping, CACC 407/1998, which is perhaps of greater assistance to the Appellant in the present case.  The applicant in that case was convicted after trial of using a forged identity card, possessing a forged identity card and attempting to obtain property by deception having tried to open an account at a bank using a forged identity card and was sentenced to concurrent terms of 15 months’ imprisonment on the charges of using and possessing a forged identity card and to 3½ years’ imprisonment in all after the deception charge had been taken into account.  However, the mere fact that both sentences of 15 months’ imprisonment for the use and possession of forged identity cards were affirmed by the Court of Appeal is, of course, a far cry from the creation of a guideline for sentencing in such cases, regardless of the circumstances in which they are committed.

15.The third case in the footnote was Secretary for Justice v Ling Veronica [1998] 4 HKC 499 where the respondent, in an application for a review of sentence, had pleaded guilty to charges of possessing a forged identity card (charge 23) and attempting to obtain property by deception amongst numerous other charges.  The sentencing judge in that case had fallen into error by giving “an overall sentence of imprisonment for two years covering every single charge”.   Plainly, individual sentences were warranted and the Court of Appeal, when setting out those sentences and increasing the overall term imposed, indicated that a 10-month sentence on charge 23 should be imposed.

16.It should be noted that the applicant in that case had been described by the judge “as a decent, hard-working person for almost all of her life”.  It must also be observed that the offence in charge 23 related to the possession, and not the use, of a forged identity card which is, if anything, usually regarded as less serious than its actual use.  In other words, the applicant in that case had been given a sentence, following her guilty plea, which reflected a starting point of 15 months’ imprisonment, for the possession of a forged identity card.

17.In order to emphasise the point that 15 months is not to be regarded as a standard starting point for the sentencing of offenders who use a forged identity card, Ms Chan has drawn my attention to a relatively recent magistracy appeal (HKSAR v Ye Furen, HCMA 1008/2009) in which Deputy High Court Judge A Chan, in a case where the applicant had pleaded guilty to the use of a forged identity card to open a bank account, affirmed a 15-month sentence in an appeal where a similar point was taken to the point raised in these proceedings.

18.Aside from the fact that the present case was not one of simple possession but instead involved the actual use of a forged identity card which, as I have indicated makes the offence rather more serious, there is also the fact that the Appellant has a previous conviction for precisely the same kind of offence for which he has served over 2 years’ imprisonment.  Accordingly, while I consider that 18 months’ imprisonment was a perfectly proper starting point for the offence in question, the Appellant could not in any event have had any valid complaint if the magistrate had passed a sentence which had been enhanced to take into account the Appellant’s bad character (see: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830). 

19.The appeal is dismissed.

Ms Cecilia S W Chan, SPP of the Department of Justice, for the Respondent

Mr Neil S. Mitchell, instructed by DLA, for the Appellant