THE QUEEN v. LEUNG SHUN-TIM

1988, No. 429

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H E A D N O T E

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Unlawfully transferring identity card - no special mitigating features - fifteen months upheld

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 429 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty before Mr Upham at South Kowloon Magistrates Court to two charges (A and B) of unlawfully transferring his identity card and two charges (C and D) of making a false statement to a Registration Officer, contrary respectively to Regulations 12(l) and 13A of the Registration of Persons Regulations, Cap. 177. He was sentenced to concurrent terms of 15 months imprisonment on charges A and B and to concurrent terms of 3 months on charges C and D, but the sentence on charge C was to run consecutively to that on charge A, a total sentence of 18 months.

2. Leung Shun Yiu came to Hong Kong as an illegal immigrant in May, 1987 and stayed with his brother, the appellant. To help him get a job at a restaurant, the appellant lent his brother his identity card. He obtained a duplicate by falsely pretending at the Immigration Department Office that he had lost his own card.

3. In January, 1988, Leung Shun Yiu lost the appellant's original-card and the appellant lent him his new card. Again the appellant went to the Immigration Department Office to get a duplicate and again said he had lost his card.

4. Leung Shun Yiu was picked up at his place of work, with three other illegal immigrants, and charged with using another person's identity card. He was sentenced to 15 months imprisonment. The appellant was arrested on 9th April, when leaving_. Hong Kong for Macau.

5. The magistrate's approach to sentence is clearly stated in the following extract from his Reasons for Sentence:

"As a fact the Appellant rendered very substantial assistance to an illegal immigrant knowing he was an illegal immigrant. As a fact the Appellant's actions enabled that illegal immigrant to use the Identity Cards to get and keep employment to which he was not entitled and which he might not have obtained but for that assistance. I could take it the obtaining of employment made the illegal immigrant's stay in Hong Kong more conducive and profitable than it otherwise might have been. In sentencing it was right to have regard to such matters. The Identity Card system is an important part of the attempt to prevent illegal immigration and the employment of persons who may not be lawfully employed. The Appellant's transference of his Identity Card struck at that purpose and intent. The Appellant knew what he was doing, That he did not receive any financial reward and that the illegal immigrant was his brother were not mitigating factors. There was no 'need' to assist the illegal immigrant by handing over the Identity Cards: such went well beyond family or humanitarian considerations or the affording of temporary shelter to an illegal immigrant.

From the Facts 'A' the illegal immigrant had received 15 months imprisonment for using the Identity Card. That sentence accorded with the approach to such offences in, for example, The Queen and Lau Chung-kwan Court of Appeal Magistracy Appeal No. 796 of 1986, By handing over his Identity Card the Appellant had set the scene for the illegal immigrant to receive 15 months imprisonment for using that card. The illegal immigrant was convicted under Regulation 12(3) of the Registration of Persons Regulations Cap 177 which provides a maximum penalty of a fine of $5,000 and imprisonment for 2 years, The Appellant was convicted on Charges A and B under Regulation 12(1) of the same Regulations which carries the same maximum penalty There is no reason in principle to adopt a different approach to sentence upon a Hong Kong resident who hands over his Identity Card to a known illegal immigrant for that illegal immigrant to use to obtain employment to which he is not entitled, to the approach adopted toward the illegal immigrant who uses an Identity Card which does not belong to him to obtain employment. To that extent the approach to sentence under Regulation 12(3) in Lau Chung-kwan's case was apposite to the Appellant's case. If anything the conduct of the Hong Kong resident who transfers his Identity Card to an illegal immigrant is more deserving of censure because the Identity Card system is a fact of life in Hong Kong,"

6. The magistrate took into account the appellant's clear record, his guilty plea and the fact that he had a wife and mother to support.

7. In R v. Law Chuen-fook⁽¹⁾ the Court of Appeal has recently dismissed an appeal against a sentence of 12 months imprisonment for aiding and abetting an illegal immigrant to remain in Hong Kong, but refused to lay down sentencing guidelines. Cons, J, A., giving the judgment of the court, said at pages 3 and 4:

"On the other hand, the circumstances which give rise to a charge of aiding, and abetting may vary tremendously. Towards one extreme may well be, for example, the daughter who conceals her aged and sick mother so that the mother may see out the end of her days in the comfort and love of her own family. At the other perhaps we may find the greedy contractor who engages a large number of immigrant workmen at wages considerably below the going market rate.

But all who are guilty of the offence of aiding and abetting have one thing in common. To some extent, at least, they encourage yet others to seek refuge thereby underminding the policy behind the sentences, imposed for the principal offenders, that is, to deter would be illegal immigrants from putting their intentions into practice. This is particularly so where opportunities for employment are offered, for it is the hope of substantially higher wages which at present is one of the principal attractions. If a would be illegal immigrant knew that his hope of employment was unlikely to be fulfilled, he would be much less inclined to take the gamble of smuggling himself here. Therefore although we agree with the view taken in the first of the authorities to which we were referred this morning where the then Chief Justice held that except in the rarest cases the offence was one which deserved an immediate custodial sentence A.G. v. Tsang Sung [1977] H.K.L.R. 549, we feel it inappropriate to suggest any particular period of imprisonment as being in general suitable for those convicted of aiding and abetting, save to say that those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves.

Of course in deciding what is a proper sentence in the individual case, the Court will have regard to the usual mitigating factors and any that are particularly appropriate to that case."

8. This appellant did not only aid and abet his brother to remain in Hong Kong; it was not just a matter of giving him food and shelter. As the magistrate points out, the appellant's actions tended to undermine the whole system of immigration control. I agree entirely with his observations.

9. Proper weight was given here to the mitigating factors, but there were no special features, such as the humanitarian features referred to by Cons, J. A. The sentences on the lesser offences were rightly made consecutive, since they were separate, though complementary, transactions.

10. The appeal is dismissed.

(1) M.A. 593/88