HKSAR v. LAM HING KWAN

HCMA340/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 340 OF 1999

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J U D G M E N T

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1. The Appellant was charged with three offences, namely :

(i) Using a forged identity card ― that was on 19 January 1999, inside Fu Cheung Fresh Fruit shop, No.39-40, Fu Tung Man Yau Market, Fu Tung Shopping Centre, Tung Chung, Lantau, he, without lawful authority or reasonable excuse, used a forged identity card bearing No.C493763(3) in the name of Kwong Chi Man;

(ii) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong ― in that on the same day, 19 January 1999, he having landed in Hong Kong unlawfully, did remain in Hong Kong without the authority of the Director of Immigration; and

(iii) In possession of a forged identity card ― in that on the date and at the place as mentioned in the first charge, he, without lawful authority or reasonable excuse, had in his possession the forged identity card mentioned in the first charge.

The Appellant is seeking leave to appeal against conviction out of time and in support of the application, he filed an affirmation putting forward the facts and evidence in support.

2. Before Mr Casewell, the Magistrate, the Appellant pleaded guilty to all the three charges and he was sentenced by the Magistrate to a term of 15 months' imprisonment for each of the three charges, to run concurrently.

3. Mr Chan acts for the Appellant on the application for extension of time to appeal against conviction in respect of the 2nd charge. The evidence disclosed in the affirmation of the Appellant is that in fact he entered Hong Kong by virtue of a two-way permit issued by the Chinese Authorities. He entered Hong Kong, according to the two-way permit, on 2 October 1998, and was permitted by the Hong Kong Immigration to remain in Hong Kong until 9 October. When he was found by the police inside Fu Cheung Fresh Fruit Shop on 19 January 1999, he was obviously overstaying, but he did not tell the police that he had entered Hong Kong on a two-way permit. Moreover, he pleaded guilty before the Magistrate because, according to him, he was not aware of the difference between the offences of "breach of condition to stay" and "illegally remaining in Hong Kong after having entered illegally". That was the reason why he pleaded guilty to the 2nd charge.

4. The prosecution does not dispute these facts as disclosed in the Appellant's affirmation. On the basis of these new evidence, there was no possibility for the Appellant to have been found guilty of remaining in Hong Kong after having entered Hong Kong unlawfully because his entry was lawful. Despite his plea to the 2nd charge, therefore, I have the power to entertain the appeal which is in accordance with the law as stated in R v Li Tung Hing [1992] 2 HKC 427, the ground being that the Appellant did not appreciate the nature of the charge. Indeed, cases of a similar nature occurred in R v Wong Chi Keung MA No.111 of 1997 (25 June 1997, unreported) and HKSAR v Wong Kwok Shing MA No.888 of 1997 (30 December 1997, unreported).

5. In the circumstances, the proper course for me to take is to grant leave to appeal against the conviction of the 2nd charge out of time and allow the appeal.

6. The prosecution has indicated to me that it does not seek a retrial, mainly because of the reason that the Appellant has been in custody since 19 January 1999, and has therefore been in custody for about 8 months which may be counted as equivalent to about a 12 months' term.

7. I accept that is a reasonable stance to take and in respect of this conviction on which appeal is allowed, I do not propose to order a retrial.

8. Now I turn to sentence, Mr Chan's instructions are limited and he does not represent the Appellant on sentence. Sentence, of course, is now limited to the two remaining charges, the first and the third one. Obviously, the first offence ― using a forged identity card ― is a much more serious offence than the 3rd charge of being in possession of a forged identity card.

9. In respect of the use of the forged identity card, according to the facts admitted by the Appellant before the Magistrate when he pleaded guilty, he used it to obtain a job from the fruit shop owner. His employment with the fruit shop owner was from early October 1998 until his arrest by the police on 19 January 1999. From the admitted facts, it is also apparent that he used the forged identity card because of the illegal nature of his remaining in Hong Kong, although, as it transpires now, he is wrongly charged with the offence of remaining in Hong Kong after having unlawfully entered whereas he should have been charged with breach of condition of stay.

10. In the circumstances, Mr Man for the Government argues that the 15 months' imprisonment imposed by the Magistrate is proper. He relies on Shamim Nawaz [1994] 1 HKCLR 195, which stated that "If the possession is to obtain employment or otherwise further the remaining in Hong Kong, fifteen months imprisonment upon a guilty plea is not excessive". This has been the law and practice since R v So Man King [1989] 1 HKLR 142.

11. I also consider the Appellant's own circumstances as he mentions to me in this appeal. He says that his parents are old in their native place and his children are young, and they all rely on him. His health is not good and he has to take medicine from time to time. However, what the Appellant tells me does not amount to humanitarian reason for allowing me to reduce his sentence. The law here is stringent that even for a guilty plea to possession of a forged identity card and it is for the purpose of obtaining employment in Hong Kong and illegally remaining in Hong Kong, a sentence of 15 months' imprisonment is the norm. In the circumstances, I am not inclined to disturb the sentences imposed by the Magistrate in respect of the two remaining offences. I dismiss the appeal on sentence.