HKSAR v. LIN ZHAN

HCMA 634/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 634 OF 2000

(On Appeal from Tuen Mun Magistracy Case No. TMCC 1673/2000)

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J U D G M E N T

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1. The Appellant was convicted at Tuen Mun Magistracy on 5 June 2000 of two offences. The first offence is for possession of a forged Hong Kong identity card, contrary to s.7A(1) of the Registration of Persons Ordinance, Cap.177. The second offence is in relation to breach of condition of stay, contrary to s.41 of the Immigration Ordinance, Cap.115. The Appellant was sentenced to 18 months' imprisonment for the first charge, and 28 days' imprisonment for the second charge, both sentences to run concurrently. The Appellant now appeals against these sentences.

2. The admitted facts show that on 17 May 2000, the Appellant was intercepted by a police officer in Pat Heung. The Appellant produced the forged Hong Kong identity card, the subject matter of the first charge. On enquiries, it revealed that the Appellant had entered Hong Kong lawfully on 29 December 1999 using a Chinese passport and he had been permitted to stay until 5 January 2000. However, the Appellant had overstayed for slightly over 5 months. This constitutes the second charge.

3. The Appellant's reasons for appeal against sentence is that the sentence was too severe. In his submissions in Court, he referred to the fact that he had a family in the mainland and his wife had heart disease. He also said that his family was in grave financial difficulties. The Appellant further referred to another case in which the defendant, who was convicted of offences similar to those which the Appellant was convicted of, was only sentenced to 12 months' imprisonment.

4. The Appellant's personal and family circumstances had been fully put before the magistrate in mitigations by his legal representative. The magistrate had also taken these into account when he sentenced the Appellant.

5. In imposing 18 months' imprisonment on the first charge, the magistrate considered that the Appellant had made use of the forged identity card to further his stay in Hong Kong. That is a correct view taken of the matter. Accordingly, in accordance with the case of R v. Shamin Nawaz MA No. 804/1993, a 15 months' imprisonment is not excessive upon a plea of guilty. In addition, the Appellant had a previous conviction in 1996 for a similar offence of using a forged identity card. On that basis, the magistrate considered that the sentence should be adjusted upwards to 18 months. That view of the magistrate cannot be faulted.

6. On the second charge of overstaying in Hong Kong, the facts show that the Defendant had been overstaying for more than 5 months. For the circumstances, the starting point of 6 weeks' imprisonment adopted by the magistrate and the 28 days' imprisonment eventually imposed, cannot be said to be in any way excessive.

7. The reference to another case in which a defendant received 12 months' imprisonment in total for offences of using forged identity card and for a breach of condition of stay is not of any assistance to the Appellant. This is because this Court is not appraised of any or all of the circumstances of that particular case. In any event, the Appellant in this case had a previous similar conviction for the first charge. That being the case, a 18 months' imprisonment is in no way excessive.

8. For the reasons indicated above, the Appellant's appeal against sentence is dismissed.