HKSAR v. HUI SHUN KIN

HCMA 978/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 978 OF 1998

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J U D G M E N T

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1. This is an appeal against the sentences imposed upon the appellant in the San Po Kong Magistracy following his pleas of guilty to an offence of possessing a forged identity card and to an offence of remaining in Hong Kong without authority.

2. In respect of the first offence the appellant was sentenced to a term of 6 months imprisonment and in respect of the second to a term of 15 months imprisonment, such sentences to be served consecutively.

3. The appellant has 2 previous convictions (both in 1992), one of uttering a forged document and one of remaining in Hong Kong without authority. In respect of each of those offences he was sentenced to a term of 15 months imprisonment, such sentences to be served concurrently.

4. In her grounds of appeal Miss TSANG for the appellant seeks to say that the learned Magistrate was in error in imposing consecutive terms of imprisonment and that the total term of 21 months was manifestly excessive.

5. In his reasons for sentence the learned Magistrate makes it plain that his objective was to take, as he put it, 'a global view of the matter'. Having come to the decision that the appropriate total sentence to be served by the appellant was 21 months he sought to adjust the individual sentences accordingly and in the method that he employed it seems to me, with the greatest respect, that he fell into error.

6. The learned Magistrate says in his reasons for sentence with admirable candour

"I acknowledge now that the facts show that he possessed the forged identity card so as to show it if he (was) challenged as to his immigration status. This is no ground in itself to enhance the sentence, but I was of the view that an enhanced sentence was called for as I have indicated earlier".

What he indicated earlier in his reasons was this:-

"... the appellant has a previous entry of a similar nature, and this indicated to me that (he) must have entered Hong Kong ... with his eyes wide-open to the possible consequences of his capture ... Therefore an upward adjustment is ... appropriate for the illegal immigrant offence, however I did sentence the appellant to 15 months imprisonment for this offence, but I, at all times intended to take a global view of the two offences to achieve a final result."

7. It seems to me that all of the authorities to which I have been most helpfully referred by Miss HO for the Respondent and Miss TSANG for the appellant during the course of this appeal make the position clear as to the appropriate sentences for these offences. For a first offence of possession of a forged identity card in circumstances such as pertain to the present case a sentence of 15 months imprisonment following a plea of guilty is appropriate. That too is the appropriate sentence for a first offence of remaining in Hong Kong without authority following a plea of guilty, but if it is not a first but a repeat offence then such sentence should be enhanced (and frequently is), to a term of 18 months.

8. In the course of her argument regarding totality Miss TSANG has submitted that following the recent judgment of the Court of Final Appeal this appellant may well be shown to have a right of abode in HK - and if indeed that is shown, then that is a ground for further reducing the totality of sentence in this case.

I wish to say 2 things about that -

1. the learned Magistrate was aware of the fact that the appellant's family live here and that was one reason why he came to Hong Kong - and he took that matter into account, and

2. if the appellant has indeed the right of abode here, he was not aware of it when he sneaked into Hong Kong both in 1992 and in 1998 and when on both occasions he had with him a forged identity card - and so offended against the laws of Hong Kong. That being so I can see no good reason for saying that the appellant might qualify for a lesser sentence than might otherwise be the case.

9. To suggest otherwise seems to me to be somewhat analogous to a suggestion that for an offence of robbery a defendant should receive a reduced sentence if he had unknowingly won the mark six the night before, thus obviating the need for the robbery.

10. In my judgment the proper total sentence for these 2 offences is one of 18 months imprisonment and to achieve that result I allow this appeal to the following extent. The sentence of 6 months imposed in respect of the 'identity card' offence will be set aside and replaced with a sentence of 15 months imprisonment. The sentence of 15 months for the 'remaining without authority' offence will be set aside and replaced with a sentence of 18 months imprisonment. Those sentences will be served concurrently with the effect that the appellant's sentence of 21 months imprisonment is reduced to one of 18 months.