HKSAR v. Zhen, Yinfang

HCMA580/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 580 OF 2011

(ON APPEAL FROM STCC 3062 OF 2011)

----------------------

BETWEEN

----------------------

Before : Deputy High Court Judge A. Wong in Court

Date of Hearing : 1 December 2011

Date of Judgment : 30 December 2011

-------------------------

J U D G M E N T

-------------------------

1.The appellant pleaded guilty to one charge of Possession of Forged Identity Card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177, Laws of Hong Kong. A Deputy Magistrate (“the Magistrate”) convicted her and sentenced her to 11 months’ imprisonment. She now appeals against the sentence.

FACTS OF THE CASE

2.According to the facts which the appellant admitted, she arrived in Hong Kong at the Macau Ferry Terminal.  Upon custom clearance, a Hong Kong Permanent Identity Card was found in her wallet.  The photograph in the identity card resembles the appellant but the name and date of birth are not hers.

3.Under caution, she admitted that she had bought the identity card in the mainland at a cost of RMB100.  She knew the identity card was false and she intended to use it to conceal her date of birth as she wanted to be younger.

BACKGROUND AND CRIMINAL CONVICTION RECORD

4.The appellant is 32 years old.  Though she is not a permanent resident of Hong Kong, her stay in Hong Kong is lawful.  She has a genuine Hong Kong identity card.

5.Her husband is an electrical engineer working with the Hong Kong Civil Service.  She has been living with the family in Hong Kong since 2010.

6.She has one criminal conviction record.  In March 2005, for the offence of breach of condition of stay, she was sentenced to 2 months’ imprisonment.

MITIGATION

7.It was said the appellant purchased the false identity card one year ago when she was in Shenzhen.  A woman with a small child begged for money and suggested to provide her with a Hong Kong identity card if she could pay her RMB100.  Out of sympathy she agreed and obtained the identity card.

8.She intended to use the identity card to amuse her friends and not for any unlawful purpose.

9.She has her own Hong Kong identity card and was entitled to work here.

10.She has no criminal conviction back in the mainland. Her only conviction in Hong Kong was for the offence of breach of condition of stay.  On that occasion she came to visit her husband and overstayed.

11.Mitigation letters as well as medical chits in relation to her mother-in-law were produced.

THE SENTENCE

12.Before sentence, the Magistrate asked for a background report.

13.He expressly rejected the following matters :

(1) the appellant bought the false identity card out of generosity;

(2) she wanted to amuse her friends with the false identity card; and

(3) she did not have (or will not have) the intention to use the false identity card and had (or will not have) no benefit from possessing it.

14.He said the false identity card would provide the appellant with advantages or convenience in the labour market since she could hold herself out to be much younger, and her potential employer would not need to have the trouble of inspecting her valid travel document.

15.He said there must be some sinister motive on the part of the appellant.  He found the appellant had the intention of concealing her identity to seek employment in Hong Kong.

16.He considered he should follow the sentencing guidance in HKSAR v Li Chang Li, HCMA935/2004.

17.He adopted a starting point of 12 months, after giving a discount for the guilty plea.

18.He gave the appellant one further month of discount on humanitarian ground, bearing in mind the medical condition of her mother-in-law.

19.He did not consider there were any exceptional circumstances which justified suspension of the sentence.

GROUNDS OF APPEAL

20.Counsel for the appellant, Miss Annie Lai, advanced three grounds of appeal.

Ground 1

21.The Magistrate erred in law and in principal in adopting 18 months as the starting point when Li Chang Li is not applicable in the present case in the light of its special facts.

22.The Magistrate erred in speculating that the use of the forged identity card was to gain advantages or convenience in the labour market and the appellant had the intention of concealing her identity to seek employment in Hong Kong, when there was no such evidence.

Ground 2

23.Owing to his misconception that he had to follow Li Chang Li, the Magistrate erred in failing to consider the possibility of alternatives to an immediate custodial sentence.

Ground 3

24.The starting point of 18 months is too high and the sentence of 11 months’ imprisonment is manifestly excessive.

DISCUSSION

Ground 1

25.Miss Lai submitted that Li Chang Li is not applicable since it targeted those who possess forged identity card for the purpose of employment, even though it is irrelevant whether their presence in Hong Kong is lawful or not.

26.Miss Lai cited, inter alia, HKSAR v Lau Kam Ling, HCMA223/2010 to support her view.  In that case, Deputy High Court Judge P. Li agreed with the observation of the Magistrate that Li Chang Li does not necessarily apply in cases involving local resident using a false identity card.  It was said that the sentencing principle in Li Chang Li is targeted at visitors and illegal working, and therefore cannot directly apply to cases involving local residents using forged identity cards.

27.Counsel for the Respondent, Mr Andrew Cheng, Public Prosecutor, did not seek to argue otherwise.  He accepted that, given the fact that the appellant is a Hong Kong resident and is permitted to work, the sentencing guideline in Li Chang Li may not be applicable.

28.In Li Chang Li, Yeung JA (as he then was) expressly said the suggested sentences were meant to be tariff(量刑準則).  The judgment was written in Chinese, and it read :

「40. 本庭認為管有偽造或他人身份證，即使犯案者是合法在香港，一般而言認罪後的量刑基準應定為12個月監禁以反映該類罪行的嚴重性，和達到阻嚇目的。

41. 假若犯案者，確有出示或利用偽造或他人身份證以掩飾其身份，去非法工作或非法延展其在香港逗留的期限，則認罪後的量刑基準更應定為15個月監禁。」

29.Whilst in preceding paragraphs His Lordship elaborated on the severity of the problem of illegal employment and the need of deterrence, and in paragraph 41 a sentence of 15 months upon plea was suggested for showing or using a false identity card or an identity card belonging to another person to conceal the real identity in order to work or stay in Hong Kong, no qualifying words were used in paragraph 40. It was said, in the cases of possession of false identity card or identity card belonging to another person, even if the offender is lawfully in Hong Kong, generally speaking (my emphasis), a sentence of 12 months’ imprisonment should be imposed upon a plea to reflect the seriousness of the offence and for deterrence.

30.In a subsequent case, HKSAR v Lau Kwok Wo (劉國和) CACC181/2008, a case of which the judgment was also written in Chinese, Yeung JA (as he then was) said, in a case where the offender was found to be up to no good, his offence of possession of a false identity card is no less serious than an illegal immigrant or an overstayer possessing a false identity card or an identity card relating to another person for finding a job or extending his stay[1].

31.The latest Court of Appeal case referred to me is HKSAR v FAN King Lam, CACC220/2010.  In this case the Court of Appeal accepted that there is no specific tariff for a case where the offender is a Hong Kong permanent resident and not someone staying in Hong Kong by permission.  Their Lordship went on to quote the passage of Yeung JA in Lau Kwok Wo and held that the sentence of 12 months’ imprisonment, which was imposed upon a guilty plea, should not be disturbed.

32.In the light of these authorities, I agree that, the Magistrate was entitled to follow Li Chang Li only if a finding that the appellant possessed the false identity card for the purpose of unlawful stay or employment in Hong Kong is sustainable.

33.The finding of the Magistrate was that the appellant would be using the false identity card in the context of seeking of employment.

34.This finding was strongly criticised by Miss Lai, the grounds are mainly as follows :

(1) the Magistrate was confused about the nature and effect of the appellant’s own identity card, as demonstrated by the dialogue he had with the prosecutor;

(2) in view of the unsatisfactory way the prosecutor handled the query, the court might have been clouded as to whether the appellant was able to work freely without conditions;

(3) even if an employer is under the duty to check the status of a prospective employee holding a non-permanent resident identity card, it is only a duty imposed on the employer. The disadvantage, if any, of using the real identity card was so small that there would have been no incentive for the Appellant to use a false identity card to seek employment.

(4) the Magistrate failed to evaluate adequately the relevant circumstances including the fact that the appellant :

(a) was (and still is) entitled to stay in Hong Kong;

(b) was (and still is) entitled to work in Hong Kong without restriction;

(c) has decent family background;

(d) has little need to seek employment due to the abundance of means; and

(e) the circumstances in which she came to possess the identity card and the purpose she asserted for the possession.

35.It is trite law that in sentencing facts should not be taken into account unless they have been proved beyond reasonable doubt. 

36.I do not consider any confusion as alleged existed, or that the court had been clouded. Whilst the prosecutor might have been a bid clumsy, the position was clarified at the end.

37.Mr Cheng for the Respondent argued that, since employers might find it less convenient to have to check the travel document of a prospective employee and therefore might have hesitation in employing someone who is not a permanent Hong Kong resident, there is an incentive of the job seeker to produce a false identity card showing a permanent resident status. 

38.In the present case, it must not be ignored that the identity card bears a photograph resembling the appearance of the appellant and at the same time bears a different name and date of birth.   It must have been a result of specific design, so that the appellant, if wishes to do so, can use the identity card to conceal her real identity.

39.The Magistrate rejected the story about the circumstances in which the appellant came into possession of the identity card and her intended use of it.  In the whole circumstances of the case, I see no reason to disturb this finding.  As the Magistrate said, if the appellant has sympathy on the woman who made the offer, she could just have offered her money without obtaining a false identity card.  Besides, the asserted purpose of bemusing others makes no sense.  The identity card does not bear the name of the appellant.

40.In all the circumstances, I consider the Magistrate entitled to draw the inference he did.  He was not speculating.  However, I accept that it falls short of being the only reasonable inference. Notwithstanding that, I agree entirely with the finding of the Magistrate that there must be some sinister motive on the part of the appellant. The false identity card must have been a product of deliberate and specific design, for the obvious purpose of concealing the holder of her real identity. The possession of such a false identity card entitled the Magistrate to form a sinister view.  There is a solid basis to infer that such possession by the appellant was up to no good.

41.With this in mind, I consider Ground 3. 

Ground 3

42.I consider the matter on the basis that there is no sentencing tariff applicable to the present situation. 

43.Counsel from both sides drew my attention to various cases including the followings. 

44.In HKSAR v Lau Kam Ling, HCMA223/2010, Deputy High Court Judge P. Li observed :

“Despite the absence of sentencing guideline for cases of this kind, there is no lack of sentencing cases involving resident using forged identity cards to commit crime where a starting point of 15 months being adopted. I agreed like what I have said in paragraph 21 where the Appellant must have knowledge of the whole deception plan and I therefore agreed that 15 months be adopted as starting point.”

45.Miss Lai also cited to me cases in which lighter sentence was imposed.

46.Sentence imposed in each case was of course case sensitive.  Besides, I find I can derive little assistance from the cases especially those decided before Li Chang Li. 

47.Generally speaking, the offence of using such identity card is more serious than mere possession of it.  There is no evidence that appellant in the present case did use the false identity card.

48.In deciding the correct sentence, the finding that possession of the false identity card by the appellant was for some sinister motive must be borne in mind.  Sufficient regard must be given to the underlying spirit in sentencing as promulgated in HKSAR v Lau Kwok Wo and HKSAR v Fan King Lam.

49.The applicants in both of these Court of Appeal cases were found in possession of the fake identity card when they were committed another offence.  Despite the applicants were both separately punished for the other offence committed, I am of the view that a slightly lower starting point for the identity card offence may be adopted in the present case. 

50.In all the circumstances of the present case, I consider a starting point of 15 months appropriate, instead of 18 months which was adopted by the Magistrate. 

Ground 2

51.The thrust of this ground is failure of the Magistrate to consider an alternative to immediate custodial sentence.

52.Even though the Magistrate erred for the reasons I mentioned above, in deciding to follow Li Chang Li, I am of the view that this case warrants a custodial sentence of a substantial term.

53.Unless in very exceptional circumstances, Community Service Order is not an appropriate sentence for an offence of this nature and gravity.

54.I do not consider such exceptional circumstances exist in the present case.  This is so in particular as the appellant had a previous conviction of an immigration offence, for which she was sentenced to an imprisonment term.

55.I also agree with the Magistrate that there is no exceptional circumstances which justify suspending of the sentence imposed.

CONCLUSION

56.By reason of the matters aforesaid, I am of the view that a proper starting point for the present case is 15 months.

57.The appellant is of course entitled to a one-third discount for her guilty plea.  I am also prepared to give her the further one month discount which the Magistrate had given her.

58.The sentence imposed is manifestly excessive.  As a result, I allow the appeal to the extent that the sentence is reduced from 11 months to 9 months’ imprisonment.

Mr Andrew Cheng, SPP (Ag.) of the Department of Justice, for HKSAR

Ms Annie Lai, instructed by Messrs Wong & Co., for the Appellant