HKSAR v. HARJIT SINGH

DCCC 501/2019

[2022] HKDC 660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 501 OF 2019

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Reasons for Sentence

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1.  The defendant has been convicted after trial in respect of two charges on this indictment: The 5^th charge, possession of forged identity cards, and the 6^th charge, possession of unlawfully obtained travel documents.

2.  The facts of the offences are found within the judgment I have just issued in terms of reasons, but very briefly, in respect of the 5^th charge, we are concerned with three Hong Kong identity cards which were forged.  In respect of the 6^th offence, the possession of two travel documents, namely, Philippine passports.

3.  The offences or the convictions are on the basis of the offences simpliciter.  There is no other evidence concerning the possession of these items other than that they were in the defendant’s possession in his store in a box.  Any wider conclusions would be speculative on the basis of the evidence I have.

4.  As far as the defendant’s background is concerned, his criminal record shows that he is a person of clear record.  He is a male, aged 52 years, born in India and of Indian nationality.  He has been resident in Hong Kong off and on since 2006 under a spousal visa with his wife, Ms Rajwant Kaur.

5.  As far as the defendant’s livelihood is concerned, I know from the evidence that he is the owner of the Jagpreet Indian Provision Store in To Kwa Wan.  So he has not at any stage been a burden on the taxpayer of Hong Kong and has sought to live an industrious life here.

6.  I note the consequences of these convictions may lead to the defendant being required to leave Hong Kong after the completion of any sentence of imprisonment that I pass.

7.  As far as these offences are concerned, in respect of the first, the 5^th charge, there are no actual guideline sentences, but there are cases where sentences have been proposed in HKSAR v Li Chang Li [2004-2005] 5 HKCLRT 193, set out the normal sentence on conviction after trial would be one of 12 months’ imprisonment where the possession is regarded as simpliciter.  If there are aggravating factors a sentence of 15 months’ imprisonment could be adopted.

8.  In respect of the 6^th charge, a normal sentence after trial would be one of 18 months’ imprisonment.

9.  I am asked to consider the following mitigating factors.  Firstly, the defendant’s clear record and, secondly, the, what’s described as, delay in the bringing of the charges. 

10.  The offence is allegedly committed from 2009 onwards up to 2017.  The first four offences were detected at the same time as the 5^th and 6^th offences in 2017, so really we are looking at 1 November 2017 being the date on which the store was raided, and evidence was being collated. 

11.  In fact, charges were not brought until 2019, the date of the indictment being 25 June 2019, and we are now three years later, a delay largely caused since indictment by the effect of the pandemic on the ability of the defendant to bring witnesses to court and, clearly, that evidence was agreed, quite rightly so, in trial, but that evidence did lead to the defendant’s acquittal on the four charges, the first four charges, so it was a necessary adjournment.

12.  There is no reason when producing a sentence by way of delay to allocate blame or fault and it would appear to me in this case there is no blame or fault to be allocated to anybody here.  The delay appears to be systemic and caused by factors largely beyond the control of everyone concerned here, but the effect on the defendant is that the matter has been hanging over him for a long period and he is a person of clear record.  So it is a mitigating factor I will take into account when determining the final sentence.

13.  I will deal with the sentences I will impose now.  In respect of the 1^st charge, I find there is an aggravating factor in this case in that there are three identity cards.  So it is more serious than the simple case of one identity card.  What I should do is take a starting point on that 5^th charge of 15 months’ imprisonment.  I will reduce that to 12 months’ imprisonment for the defendant’s fact of delay, a delay of three months.  Sorry, a reduction of three months, leading to a final sentence of 12 months’ imprisonment.

14.  On the 6^th charge I will take what I determine to be the normal starting point for sentence, one of 18 months’ imprisonment.  I will reduce that to 15 months’ imprisonment having regard to the delay inherent in this case.  I consider that having regard to all the factors in this case those sentences can be served concurrently.  So the final sentence will be one of 15 months’ imprisonment on both charges.