HKSAR v. CHEUNG KIN FAI

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 660 of 1997

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J U D G M E N T

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1. The Appellant appeals against a sentence of 15 months in respect of a charge of Using a forged identity card and a sentence of 3 months in respect of Breach of Condition of Stay. The sentences were ordered to run concurrently.

2. The Magistrate in this case considered the guidelines and passed a sentence that he considered proper. There were no matters raised in mitigation by the Defendant except to demand the Court's sympathy for his position. The Defendant has two previous convictions for Unlawful Remaining, so he could not have been in any doubt about his status in Hong Kong. In fact he had been sentenced to 15 months imprisonment both in 1990 and 1992 for those offences of unlawful remaining.

3. I have had referred to me the case of R. v. Law Kwai Wong Magistracy Appeal No.1111 of 1995. The facts in that case and the previous history were similar to the present case. In that case, the Magistrate had taken as a base sentence one of 15 months and the final sentence was 21 months. The Appeal Judge considered that the proper sentence should have been 18 months and he decreased the sentence to that term. In the instant case, it appears the Magistrate has been lenient in giving his sentence, particularly in view of the fact that he has made the breach of condition of stay a concurrent sentence.

4. Today the Appellant has put forward no grounds for reducing the sentence at all; there is no merit in the appeal against sentence. Although I consider the Magistrate's sentence may have been a bit on the light sideI do not propose to increase the sentence itself or to disturb it, however, I order that time runs from today in respect of this sentence.

5. The appeal is dismissed, time is ordered to run from today.