HKSAR v. SHAMSHER SINGH AND ANOTHER

HCMA 651/2017

[2018] HKCFI 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 651 OF 2017

(ON APPEAL FROM ESCC 1584/2017)

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J U D G M E N T

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1.  These are two appeals against sentences from both appellants. Both appellants were represented in the court below, by counsel instructed by the duty lawyer service.

2.  The first appellant in this case who was the first defendant in the trial below was convicted after trial on charge one which is for possession of an identity card relating to another person and he pleaded to charge two which is a breach of condition of stay.

3.  The facts which were found by the learned magistrate on charge one was that the first appellant was seen by a police officer inside the car park of the white Jade building in Stubbs Road and upon a search of the appellant, an identity card belonging to a Mr Singh Sharanjeet was found in his backpack.  And upon in further investigation, it was found that the first appellant is a Form 8 holder and is not allowed to take up employment while in Hong Kong.  However, it was discovered that the appellant had worked for PW1, Mr Hung, at various construction sites between 25 May 2017 to 31 May 2017which is the subject matter of the second charge.

4.  In sentencing the first appellant, the learned magistrate did take into account the fact that he is aged 30 and is single and in mitigation, it was put forward by his counsel that the appellant has a clear record.  The learned magistrate took into account all that the counsel said in mitigation.  The learned magistrate considered the case of HKSAR v Li Chang Li, HCMA 935/2004 where a starting point of 18 months was seemed appropriate for charge one if convicted after trial.  So the learned magistrate then sentenced the first appellant to 18 months’ imprisonment on the first charge.

5.  As for charge two, the usual starting point is three months’ imprisonment.  The learned magistrate gave the first appellant the usual discount for his guilty plea and so sentenced the appellant to two months’ imprisonment.  And after considering the totality principle, then the learned magistrate made both sentences concurrent.

6.  The learned magistrate had also noted that for charge two, initially the appellant had required a Newton Hearing to consider the period that he actually worked, however, no Newton Hearing was actually required as he had pleaded guilty.

7.  I have considered the fact in this case and the admitted facts and also the mitigating factors as put down by the learned magistrate.  The learned magistrate was clearly right because he had considered the proper case in assessing the appropriate sentence for both charges and I see no cause to interfere with his sentences in relation to both charges.

8.  Therefore there are no grounds to interfere with the sentence and the application of first appellant to appeal against sentence is dismissed.

9.  In relation to the second appellant, he is 26 years old and is also a Form 8 holder.  He was convicted after trial on charge three which is using an identity card relating to another person and he pleaded guilty on charge four which is prohibition of taking employment and establishing business.  The facts in relation to charge three was that the second appellant was intercepted on the same occasion as the first appellant.  Upon further investigation, it was found that the second defendant who is the second appellant in this case was employed by PW1 as a construction site worker on a probation basis.  He was then employed on a full‑time basis after one or two months and he produced the identity card in the name of Mr Singh Ramanjit which had been reported lost to PW1. And so the fact is that he had used the identity card relating to another person in order to gain employment.

10.  As to charge four to which the second appellant had pleaded guilty, the facts disclosed that he had worked for PW1 at various locations between early July 2016 to 31 May 2017.  The second appellant had been granted recognizance on 5 February 2016 and was told that he cannot take up employment.  In considering sentence in relation to the second appellant, the learned magistrate had listened to the mitigation put forward by his counsel and the fact that the second appellant had a clear record.  Again the learned magistrate considered the case of HKSAR v Li Chang Li, HCMA 935/2004 and considered that the usual starting point for charge three is 22 and a‑half months.  As for charge four, the learned magistrate considered the case of HKSAR v Usman Butt and another, HCMA 70/2010 that a starting point of 22 and a‑half months is appropriate, because the appellant had pleaded guilty, he reduced the sentence to 15 months’ imprisonment.  Again, having considered the totality principle, the learned magistrate made both sentences concurrent.

11.  The second appellant also complained that the sentences were too long and urged this court to reduce the sentences.  As I had indicated above, the learned magistrate had already considered the salient points in the case and appropriately considered the sentencing guideline and therefore at the end of the day had correctly sentenced in both charges which the second appellant faced.

12.  I cannot see there are any reasons to disturb the sentences and I therefore dismissed the appeal against sentence of the second appellant.