HKSAR v. ZHANG XIANGFENG

HCMA 753/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 753 OF 2010

(ON APPEAL FROM KCCC 3803/2010)

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J U D G M E N T

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1.  The Appellant pleaded guilty in the Magistracy to one count of Possession of Forged Identity Card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177. He was sentenced to 12 months’ imprisonment and appealed against that sentence, on the general ground that it was too severe.

2.  The facts, which were admitted by the Appellant at plea before the Magistrate, was that he was intercepted in the street by police for an enquiry in August 2010.  A search showed that he had a smart HKID card in the name of Chiang Xiang-fung, bearing his photograph, in the back right pocket of his trousers.

3.  When questioned, the Appellant admitted that he bought the card in Shenzhen for RMB 100 intending to use it to seek jobs in Hong Kong.  He admitted the same information under caution.  He was taken for a house search and his China two-way permit was found.  That confirmed that he was a two-way permit holder who had arrived in Hong Kong on 21 August 2010 and was permitted to stay until 28 August 2010.  He was arrested on 8 September 2010.

4.  After forensic examination the Government Chemist confirmed that the identity card was a forgery.

5.  In mitigation the Magistrate was advised by the Appellant’s lawyer that he was aged 34 and had been working in an electronics factory in Shenzhen.  He was the only son of his family and sent half his earnings to his parents who lived in the mainland.

6.  The Magistrate took into account the Appellant’s plea of guilty and his clear record.  He commented in his Reasons for Sentence that the usual tariff for this offence was up to 15 months’ imprisonment on a plea of guilty.  He bore in mind that although the Appellant had admitted coming to Hong Kong to seek work, he had not in fact succeeded in obtaining a job by the time he was arrested.  He adopted a starting point of 18 months’ imprisonment, reduced that by one third to give credit for the Appellant’s guilty plea and sentenced him to 12 months’ imprisonment.

7.  The Appellant filed standard grounds of appeal complaining that this sentence was too severe.  In court he traversed the same ground as was put before the Magistrate in mitigation.  He said this was the first time he had come to Hong Kong; that he did not know the law; that the financial situation of his family was poor and he hoped the court would reduce his sentence.  He was particularly concerned that he knew of somebody who had received a 10 months’ sentence for three similar charges and complained that he had received 12 months for one offence.  This court has no notice of what that case was about or know why the sentence of 10 months was passed as the Appellant claims.  It is not for this court to give answers to questions about hypothetical cases that are not before it.

8.  It appears that the Magistrate followed the usual sentencing guidelines as discussed by the Court of Appeal in HKSAR v Li Chang Li [2004-2005] HKCLRT 193.  The sentencing point on a plea of guilty is ordinarily 12 months’ imprisonment, which reflects the seriousness of the offence and serves as a deterrent.  In Li Chang Li,the Defendant pleaded guilty to possession of a forged identity card for which she admitted paying RMB 500 intending to use it to seek employment in Hong Kong.  Her sentence of 12 months’ imprisonment was confirmed by the Court of Appeal.

9.  If an offender produces, or uses, a forged identity card, or an identity card belonging to another, to conceal his own identity, or to work illegally, or unlawfully further his stay in Hong Kong, the sentence, after a plea, should be 15 months’ imprisonment.  Where there are special mitigating factors the Magistrate should exercise his discretion and impose an appropriate sentence, according to the particular circumstances of the case. 

10.  Here, there were no special mitigating factors put before the Magistrate or indeed put before this court.  There is nothing to show that the Magistrate’s sentence was excessive or wrong in principle. Accordingly this appeal against sentence is dismissed.