HKSAR v. MANNANOV BULAT

HCMA 570/2018

[2019] HKCFI 747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 570 OF 2018

(ON APPEAL FROM ESCC 2375 OF 2018)

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J U D G M E N T

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Introduction

1.  The Appellant was charged with one count of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Person Ordinance, Cap 177 (“the Charge”).  The Appellant pleaded guilty.

2.  On 12 July 2016, the Appellant was sentenced by a Magistrate at Shatin Magistracy to 2 weeks’ imprisonment suspended for 3 years on one count of breach of condition of stay contrary to section 41 of the Immigration Ordinance, Cap 115[1] (“BOC charge”). 

3.  As the present offence was committed on 24 July 2018, it therefore fell within the activation period of the suspended sentence of the BOC charge.

4.  On 14 November 2018, the learned Principal Magistrate[2] imposed a total sentence of 12 months and 1 week’s imprisonment.  That being:

(i)  12 months on the Charge; and

(ii)  1 week’s imprisonment, (the suspended sentence of the BOC charge was activated and it was ordered to run consecutively to the offence.)

5.  The Appellant initially appealed both sentence and conviction.  However, via a Notice of Abandonment filed 2 January 2019, the Appellant abandoned his appeal against conviction. 

6.  He now appeals against sentence only.  It is the Appellant’s case that the sentence is too severe.

The Brief Facts

7.  The brief facts were admitted by the Appellant.  In summary at around 0739 hours on 24 July 2018, PC 25715 together with other police officers attended a rear lane in Causeway Road, Happy Valley for a case of “Suspicious Person Found.”

8.  PC 25715 saw the Appellant acting furtively and intercepted him for stop and search.  PC 25715 demanded the Appellant for his proof of identity card.  The Appellant produced a Hong Kong Identity Card in the name of GALLAHER Ross Casundin [“the Identity Card”].

9.  Upon a search of the Appellant, the Appellant’s Form 8 was found inside his wallet.  The particulars of the Identity Card did not match those contained in the Form 8.

10.  At 0751 hours the Appellant was arrested.  Under caution, the Appellant stated that he picked up the Identity Card at around 0100 hours on 24 July 2018 on the footbridge of Central pier.  The Appellant further admitted that he produced the Identity Card to test whether PC 25715 could differentiate between the Appellant and the true owner of the Identity Card.

11.  The holder of the Identity Card could not be located.  The holder of the Identity Card’s father mentioned that his son had lost his Identity Card in May 2018 and had since left Hong Kong. 

12.  The Appellant was released on police bail with the requirement to report back on 27 August 2018.  However, he jumped bail and was unable to be contacted.

13.  At around 1500 hours on the 2 October 2018, the Appellant was intercepted by the police.  He was then charged with the current offence.

Learned Magistrates Statement of Findings and Reasons for Sentence

14.  In his Statement of Findings and Reasons for Sentence[3], the Magistrate stated[4]:

“It has been clear sentencing principles for this sort of offences as laid down by the Court of Appeal in Li Chang Li [2005] HKLRD 864 with further endorsed also by the Court of Appeal in Tran Viet Thank [2012] 1 HKLRD 903. In the present case, I could not see any reason to depart from those principals. I adopted 12 months as a start on a plea, without any justification for further reduction. Furthermore, by committing the present case that triggered a suspended sentence in ST 2545/2016 (breach of condition of stay) in which he had a sentence of 2 weeks suspended for 3 years on 12 July 2016. Having regard to totality, I therefore activated only half of it to make it 1 week to run consecutively.”

Appellants Submissions

15.  The Appellant appeared in person.  In his oral submissions, the Appellant adopted the grounds as stated in Form 102, more particularly, he asserted the sentence of 12 months’ imprisonment in the Charge was too severe.  He was not contending that the 1 week’s imprisonment was too severe or that it should not have been ordered to run consecutively. 

16.  He submitted that he did not intend to conceal his identity as he had his original Form 8 papers all the while in his wallet. He did not use the HKID card to work or further his stay in Hong Kong.  He did not have any criminal intentions or actions.  In light of those factors there was a lack of seriousness in the offence and hence he should be sentenced more leniently. 

Respondents Submissions

17.  In his written submissions, Counsel for the Respondent Senior Public Prosecutor, Mr Prakash L Daryanani submitted that the sentence is entirely correct and within the appropriate range with that as set out in relevant authorities.[5] 

18.  Further, he submitted that the Magistrate rightly utilised his discretion in activating the suspended sentence in regard to the ‘BOC’ charge and was correct to apply the principle of totality in arriving at the final sentence of 12 months, 1 week.[6]

19.  In reply to the Appellant’s submissions, Mr Daryanani stated that even if a person is legally in Hong Kong and uses an identity card belonging to another, there are clear guidelines laid down by the Court of Appeal to combat a class of people that are not using such a document for criminal purposes.  He maintained that the Magistrate is bound to follow the guidelines laid down by the Court of Appeal.  Hence the sentence imposed falls squarely within these guidelines and is as such entirely proper. 

Discussion

20.  As highlighted by Mr Daryanani, the Magistrate did not state the starting point from which he arrived at the 12 months’ imprisonment in the Charge.  Although not ideal, it follows the Magistrate adopted 18 months’ imprisonment as a starting point from his use of the phrase, “I adopt 12 months as a start on a plea…” at paragraph 6 of his Statement of Findings and Reasons for Sentence. 

21.  In deciding on sentence, the Magistrate cited two cases:  HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903 and HKSAR v Li Chang Li [2005] 1 HKLRD 864.  In Tran Viet Thanh, the Court of Appeal endorsed the principles laid out in the earlier decision of Li Chang Li.  

22.  Mr Daryanani submitted that the sentence imposed by the Magistrate is within the appropriate range as laid down by the above authorities and as such the appeal against sentence should be dismissed.

23.  In mitigation before the Magistrate, defence counsel stated that the Appellant has two previous convictions which are not similar.  He is 33 years old and an asylum seeker from Russia.  He came to Hong Kong in 2016.  He has a degree in computer science from St. Petersburg State University. 

24.  In considering the appropriate sentence to be imposed Yeung JA giving judgment for the Court of Appeal in Li Chang Li stated :

“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.

41.  If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.

42.  The above sentences are of course only applicable to ordinary cases.  Where there are special mitigating factors, the judge should exercise his discretion and impose such sentence as is appropriate in the particular circumstances of the case.”

25.  In applying paragraphs 40 to 42 above in the judgment by the Court of Appeal in Li Chang Li, the Appellant’s presence in Hong Kong is lawful as he is a holder of a Form 8.  On that basis, upon a plea of guilty the appropriate sentence is one of 12 months’ imprisonment (para 40). 

26.  In the present case however it is evident the Appellant produced the Identity Card when asked for his proof of identity.  The only reasonable inference to draw from the production of the Identity Card was to conceal his identity.  A sentence of 15 months’ imprisonment upon a plea of guilty would have been appropriate (para 41).  There are no special mitigating factors in this case to impose a reduction of that term (para 42). 

27.  As a result of the Appellant committing an offence in the activation period of a suspended sentence, the Magistrate was correct to activate this sentence.  He properly gave regard to totality and ordered it to be served consecutively.

28.  It follows therefore, the sentence the Magistrate adopted was lenient. His adoption of 18 months’ imprisonment as a starting point, awarding a one-third discount for an early plea, resulting in a sentence of 12 months’ imprisonment is neither wrong in principle nor manifestly excessive.

29.  In the circumstances, the appeal against sentence is dismissed.