HKSAR v. Hillyer, Mark David

HCMA 821/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 821 OF 2012

(ON APPEAL FROM ESCC 3753 OF 2012)

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BETWEEN 

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J U D G M E N T

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1.The Appellant is a man in his early twenties. On 3 October 2012 he stole a notepad from a store, and was caught by a member of its staff. The police were called. Upon searching the Appellant, they found in his possession a Hong Kong Identity Card in the name of Tsoi Wai-on. Also in his possession, as was found upon a further search by the police, was his United States passport. It was discovered that he was an overstayer, he having entered Hong Kong lawfully on 18 May 2012 and having been permitted to remain for 90 days so that he should have left Hong Kong on or before 17 August 2012.

2.He was charged with: theft (under Charge 1); possession of an identity card relating to another (under Charge 2); and overstaying (under Charge 3).  Appearing in the Magistrates’ Court on those three charges, he pleaded guilty to all three of them.  He was sentenced to: 10 days’ imprisonment on Charge 1; 6 months’ imprisonment on Charge 2; and 10 days’ imprisonment on Charge 3.  The three sentences were made concurrent, so that the total sentence came to 6 months’ imprisonment.

3.Subsequently the Appellant asked the Magistrate to review the sentence on Charge 2.  The Magistrate accorded the Appellant a patient hearing, but declined to alter the sentence of 6 months’ imprisonment on that charge.

4.The Appellant now appeals against his sentence on that Charge.

5.As far as the background to the case is concerned, the Appellant told the Magistrate: that he had been a student; that he had been travelling in Asia for two years; that he had been living in the United States before that; that he had been in the Mainland before arriving in Hong Kong; that he had been in prison in the Mainland for one month because he had remained there without a visa; and that he had been deported from the Mainland to Hong Kong.

6.As to the circumstances of the offence under Charge 2, I propose to recite what the Appellant said to the Magistrate about that when he sought a review.  He said this:

“First, I’d like -- I told you last time how I came upon the card on the sidewalk, it was not stolen, or anything of this sort. It was found very late at night while I was searching for a place to sleep because I sleep under bridges, just anywhere. And I was very tired, so I did not know what to do with it originally. I never had any malicious intent, I never had any selfish intent in picking it up, but I didn’t have any good intent either, I did not intend to return it, I had zero intent anyway, I had no idea what to do with it, I was very tired, and I just -- I was not thinking. And so I put it in my bag, and I forgot about it. That is the truth.

What I’d like to say about the card itself, because I know just my saying that I had no malicious intent or selfish intent is not enough evidence, I’d like to say that the card, it belonged to a Chinese man, which I’m sure is, you know, on the picture he has black hair, he has brown eyes, he has an Asian face. At the time of arrest, I had long blond hair, I have blue eyes, and a Western face. So, as far as I know, and I do not know everything these things can be used for, but there is no possible way I could have used it for any sort of crime that I know of.

I understand now that the charge is possession of the card, the charge is not attempting to use the card.  The charge is not stealing the card, attempting to sell the card, or even thinking about these things.  If it said ‘thinking about using the card’, I would plead not guilty.  I had to plead guilty because the charge was possessing.  It was in my bag when the police searched me, and so I had no choice.  If it’s in my bag, I possessed it, but I had no intent to break any sort of law, and it was -- the crime was committed in ignorance and stupidity really.”

7.As to why he refused to alter the sentence of 6 months’ imprisonment on Charge 2, the Magistrate said this:

“As I told the defendant this morning, actually by giving him a copy of the judgment of HKSAR v. Li Chang Li, the normal sentence for possession of identity card relating to another person will be 12 months after a plea of guilty. I have already given him a 50 per cent discount, which is quite substantial. In so doing, I have already taken into account the fact that the risk of him using it is minimal when compared with other Chinese or Asian people in possession of the same card. But still I have to pass a sentence that could reflect the seriousness of this charge.

After giving reconsideration of the matter, I find no basis to reverse my decision.  The sentence of six months will stand.”

8.The Magistrate was of course right about the normal sentence for the offence of possession of an identity card relating to another.  But the circumstances of the present case are very far indeed from normal.  The risk of the identity card being used by the Appellant to pass himself off as the holder was practically non-existent.  All things considered, I do not think that he should remain in prison any longer.  To effect his immediate release, I will allow his appeal against his sentence on Charge 2 from 6 months’ imprisonment to 10 days’ imprisonment.  The appeal is allowed accordingly.

The appellant appeared in person

Mr David Yim, of the Department of Justice, for the respondent