THE QUEEN v. LAM TAK FUNG

1988, No. 968

1988, No. 1036

1988, No. 1093

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

H E A D N O T E

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

Sentence - using an identity card relating to another person in order to get job - not aggravating factor - 15 months proper sentence in absence of humanitarian considerations.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

___________

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

J U D G M E N T

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

1. These three appeals have been heard together because the facts are similar and the sentencing principles identical. All three appellants appeal against sentences of 18 months imprisonment, imposed by Mr. Crawshaw at South Kowloon Magistrates Court, where they pleaded, guilty to using an identity card relating to another person, contrary to Regulation 12.(3) of the Registration of Persons Regulations, Cap. 177. In each instance the appellants used the identity cards to obtain employment in Hong Kong.

2. Mr. Louis Tong, for the appellants, submits that the magistrate has misinterpreted the relevant Court of Appeal decisions and has erred in finding that the appellants' use of their identity cards was an aggravating factor. He submits that the proper sentence should be fifteen months.

3. The magistrate, in his Reasons for Sentence, states: "Those cases tell us that 15 months is the starting point for first offenders pleading guilty to this offence (Remaining without authority contrary to Section 38(1)(b)), age notwithstanding, but that those using a Hong Kong identity card to obtain employment were deserving of something more."

4. In R v. Lau Chung-kwan (1987) HKLR 203, the Court of Appeal held that, in the absence of strong humanitarian considerations, the proper sentence for this offence was 15 months imprisonment. Clough, J. A. said that O'Connor J. was right (in R v. Lau Shui-leung and Others (1987) HKLR 57) to indicate a similiar level of sentence as for possession of forged identity cards - 15 months - "for the ordinary case of the illegal immigrant who is convicted of using the identity card of another person as the means by which he masquerades as a person entitled to remain and work in Hong Kong.

5. The next case was R v. So Man King and Others M.A. 408 of 1988, in which the appeals were in respect of sentences for remaining in Hong Kong without authority after having unlawfully landed here, contrary to Section 38(1)(b) of the Ordinance. It was arguers on behalf of the appellants, however, that there was a significant legal and moral distinction between that offence and the related offences of possession of a forged identity card or using that of another person. It was suggested that the commission of the latter offences enabled the culprits to masquerade as persons entitled to be in Hong Kong, whereas persons such as the appellants made no such pretence.

6. Cons, V. -P., giving the judgment of the court, said at P.3 .

"It has, to be acknowledged that there may be circumstances in which use of such cards will be an aggravating feature, but in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong."

Later at P.6 he said, after reviewing the appropriate discounts from the normal sentence of 15 months:

"On the other hand, the Court should take into account, by upward adjustment any previous unlawful entry, Whether resulting in prosecution, or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit."

7. Counsel for the respondent points to these words obiter though they were - as justification for the sent in these appeals. Use of the identity card to obtain a job is, he submits, in order to obtain a "particular benefit".

8. That appeal was very shortly followed by A.R.No.10 of 1988, in which the magistrate had passed a suspended sentence for using the identity card of another person. The respondent, in that case also, had used the identity card in order to get a job.

9. Cons, V. -P. referred to the two cases cited above, but did not deal specifically with the question whether using the identity card in this way was an aggravating feature that justified increasing the sentence above fifteen months.

10. It was held that, although, on occasions, humanitarian considerations might be so strong that suspension of the sentence might be appropriate, the factors urged on behalf of the respondent did "not even start to get a suspended sentence off the ground."

11. The court removed the suspension and, following the usual practice in such applications of discounting "to some extent what should have been the sentence", reduced the sentence to one of 12 months.

12. Mr. Tong submits that this is confirmation that the Court of Appeal considers that 15 months is the proper sentence for this offence where the identity card is used to obtain a job and where there are no humanitarian considerations. Otherwise, he says the court would have made it clear that it was increasing the sentence to 18 months and then discounting it by a third - an exceptionally large discount.

13. I am satisfied that Mr. Tong is right and that the proper interpretation of all three decisions is that the guideline sentence for this offence - on these facts - should be 15 months.

The appeals are allowed and the sentences reduced accordingly.