HKSAR v. LUO YUE CHAN

HCMA579/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.579 OF 2006

(ON APPEAL FROM ESCC 1833 OF 2006)

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J U D G M E N T

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1. Following her pleas of guilty to a charge of using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177 and a charge of breaching a condition of stay in Hong Kong, namely that she should not take up any employment, contrary to section 41 and by virtue of Regulation 2(1)(a) of the Immigration Regulations, Cap.115, Mr Candy imposed sentences of 12 and 2 months’ imprisonment for the respective offences and ordered that they be served concurrently.

2. The appellant was stopped in Thomson Road by a woman police officer on the morning of 9 May 2006 and asked to produce proof of her identity.  The appellant led the woman police officer to nearby restaurant premises at 15 Thomson Road and showed the officer a two-way entry permit.  The appellant had been permitted to stay in Hong Kong on and between 17 April and 30 May 2006.  However it was a condition of her stay that she did not take up employment.  The owner of the restaurant informed the police that the appellant had been employed by him on 23 April 2006, as a part-time delivery worker at $30 per hour, after she had presented to him a smart Hong Kong identity card.  She began working for him on 24 April 2006 and continued to do so until that day, namely 9 May 2006.

3. A search of the appellant revealed the smart Hong Kong identity card.  Under caution, the appellant admitted that she had bought the identity card in Hong Kong for $5,000 on 20 April 2006.  The government chemist confirmed that the identity card was forged.  It had different printing and was devoid of the security features to be found on a genuine smart Hong Kong identity card.  Be that as it may, having examined the identity card in court myself, it certainly has all the appearance of a genuine card, at least to the casual observer.

Reasons for sentence

4. In sentencing the appellant Mr Candy acknowledged that the proper sentence to be imposed in respect of a charge of using a forged identity card was 15 months’ imprisonment.  However, the sentence that he imposed was one of 12 months’ imprisonment for that offence and 2 months’ imprisonment for the breach of the condition of stay.  He stated that he passed the lower sentence in respect of the use of the forged identity card as a “humanitarian gesture”.  No doubt that was a reference to the mitigation that had been advanced on behalf of the appellant to the effect that a daughter of hers was suffering from a tumour to the eye for which money was required to pay for the medical expenses for the required operation. 

Grounds of appeal

5. In her home-made grounds of appeal, the appellant contends simply that the sentence imposed on her was too severe.

6. At the hearing today the appellant has expanded upon the mitigation placed before the magistrate and has placed before the court various medical reports and documents relating to her divorce.  She is the mother of two daughters.  They were the products of unions with two different men.  The daughters were born in 1998 and in 2003.  She was divorced from the father of the second child almost immediately after the birth of the child.  She said that the fathers had abandoned her and the children.  She earned, so she said, about $500 per month but that proved to be inadequate to cover medical expenses that were required in respect of illness to her younger daughter.  The medical reports that she has put before the court are two reports from Jiangmen City Hospital in respect of the younger daughter Lok Yee Wun.  One report is dated 13 December 2004 and refers to a urinary tract problem for which an operation was recommended.  The second report is dated 31 March 2006 and refers to an ailment in respect of the right eye.  It contains a reference to the fact that it was discovered at the end of last year, namely 2005, and that there had been an operation.

7. In addition, the appellant placed before this court a single piece of paper dated 18 May 2006, which again refers to a urinary tract problem and recommends an operation.  In being able to follow this document I must record the thanks of the court to Mr Leung for his assistance in translating them.

Submissions of the respondent

8. Mr Leung submits that the magistrate was correct to identity the proper sentence to be imposed in respect of the offence of using a false identity card as being 15 months’ imprisonment, citing as he does the judgment of the Court of Appeal in HKSAR v. Li Chang Li [2005] 1 HKLRD 865.  Unfortunately, although that case sets out tariff guidelines for sentence, the judgment of Yeung JA in the judgment of the Court of Appeal, although reported in the Hong Kong Law Report Digest, is not translated into English.  Again I have Mr Leung and my interpreter to thank for translating the relevant paragraphs of the judgment, paragraphs 39 to 41, from which translation the accuracy of the headnote is apparent, where it is asserted at p.866 paragraph 4 that :

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In the absence of exceptional circumstances, the sentence upon a guilty plea for possession of a forged identity card or a card belonging to another should be 12 months’ imprisonment, irrespective of whether the offender was lawfully staying in Hong Kong.  Where such an identity card was displayed or used for seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon plea should be 15 months’ imprisonment.  Where there were exceptional mitigating factors, the court should exercise discretion as appropriate in determining sentence.”

9. Having heard the submissions of the appellant in court today and seeing the medical reports, Mr Leung indicated to the court that the position taken by the respondent in the written submissions, made prior to the hearing that there were no exceptional circumstances to justify the discount that the magistrate had given was, in light of that new information, inappropriate.  He accepts now that the magistrate was entitled to make the discount on the basis of a humanitarian gesture.

Conclusion

10. Mr Leung was correct to make the adjustments he did to the stance that the respondent adopted in this appeal.  The magistrate was entitled to discount the sentence in respect of the 1^st charge to the extent that he did from the tariff guideline sentence indicated by the Court of Appeal in Li Chang Li.  That discount was appropriate and certainly not less than the appellant merits.  Certainly, the sentences imposed upon the appellant are not manifestly excessive nor wrong in principle.  Accordingly I dismiss the appellant’s appeal against the sentence.