HKSAR v. TARIQ HUSSAIN SHAH

1997, NO. MA 817 & 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

_______________

_______________

_______________

J U D G M E N T

_______________

1. The appellants Tariq Hussain Shah ("Shah") and Hussain Matloob ("Matloob") were convicted by their own plea of possession of an identity card belonging to another. Shah was sentenced to 9 months imprisonment while Matloob was sentenced to 12 months imprisonment. They were convicted by different magistrates.

2. Both were stopped by police in the street and they each produced an identity card belonging to another person.

3. Mr Chan for both appellants asks that these two appeals be heard together since the same point of law and similar facts were involved. Ms Tse for the Government has no objection to such a course of action. These appeals are now dealt with together.

4. In Shah's case, the magistrate referred to R. v. Lam Shui Leung [1987] HKLR 57 where the court considered a sentence of 15 months imprisonment for such an offence an appropriate sentence and in that case, a sentence of 12 months imprisonment was upheld. The magistrate considered that the appellant was an overstayer and not an illegal immigrant and he reduced the sentence to one of 9 months.

5. In Matloob's case, the magistrate referring to R. v. Shamim Nawaz [1994] 1 HKCLR 195, considered the normal sentence should be one of 15 months and he reduced it to 12 months for the appellant's plea. He considered that the appellant had passed himself off as someone entitled to be in Hong Kong when he produced the identity card to the police officer.

6. Mr Chan submits that the case of Nawaz does not decide that in every case of possession of an identity card belonging to another the sentence should be 15 months. He refers to the following passage in the judgment of Barnett J. :

" In my judgment, it matters not whether the offender is an illegal immigrant or an overstayer. The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card. The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive. If , however, the answer is no, and no link is established between the offender's status in Hong Kong and the identity card, the offence in relation to the identity card falls to be treated as an unconnected offence."

7. Mr Chan also refers to the latter part of the judgment where Barnett J. considered a sentence of 3 months imprisonment was an appropriate sentence for an offence of this kind.

8. Ms Tse referred to a number of cases where the court was of the opinion that a sentence of 12 to 15 months imprisonment would not be inappropriate. (R. v. Shahid Nadeem & another, Mag. App.359/94,R. v. Dai Sui Ying, Mag. App.225/95, R. v. Ereberto F. Brillo, Mag. App.449/96 and R. v. Dilip Kumar Bhattarai, Mag. App.606/96)

9. These cases, Mr Chan submits, were all where either the appellant used the identity card to seek employment or because the appellant had overstayed in Hong Kong for so long that the court was entitled to infer that he used the identity card to enable him to stay in Hong Kong. There was a link in each case and the sentence should be one as contemplated by Nawaz in the case of a link being established. He submits that in both of the present cases, there is no such link and the mere fact that the card is produced does not establish such a link.

10. In my opinion, in the absence of such a link as contemplated in Nawaz, the sentence for mere possession of an identity card belonging to another should not be one of 15 months imprisonment, whether the offender is an overstayer or otherwise. I see no reason to depart from Nawaz. In the two cases before me, there is no evidence of any such link. In Shah's case, although the appellant said in mitigation that he had used it to stay in Hong Kong, the magistrate did not rely on that. It would appear that what was said by the appellant was not accepted by the magistrate. Three months imprisonment for an offence of this nature i.e. possession simplicitur, has been accepted in the courts and both appellants should not be differently dealt with. In the circumstances, the appeals of both appellants are allowed. The sentence of 9 months in Shah's case and the sentence of 12 months in Matloob's case are set aside and each is substituted by a sentence of 3 months imprisonment.