HKSAR v. MARISSA D. LLAGAS

HCMA907/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.907 OF 1999

(On Appeal from WSCC10941/1999)

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J U D G M E N T

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1. The Appellant pleaded guilty before Mr W.K. Kwok, Principal Magistrate of Western Magistracy on 20 August 1999 to three charges : (1) breach of condition of stay, to which she was sentenced to two months; (2) possession of an identity card relating to another person, to which she was sentenced to 15 months; and (3) theft, to which she was sentenced to six months, all sentences to be served concurrently. She now appeals against the sentence.

2. Mr Delaney, appearing for her, has in the main submitted that the sentence of 15 months imposed on the second charge was manifestly excessive, but in passing he also made a submission in respect of the sentence imposed on the theft charge.

3. The Appellant is aged 33 and is a Filipino national. She had arrived in Hong Kong to work as a domestic helper. Her visa expired on 11 February 1999, thereafter she overstayed in Hong Kong. In the small hours of 19 August 1999, she was stopped at a roadblock in the Waterfront area. She was unable to produce any proof of identity to the police but later that morning, at 4:20 a.m., she led the police to her flat in Western where she produced a Hong Kong Identity Card in the name of another Filipina. She at the same time also produced her own passport. When enquiries were made by the police, she disclosed to the police that on the previous day, at 6 p.m., she had stolen an identity card from its owner when the owner, who was another Filipina paid her, the Appellant, a visit at the Appellant's residence.

4. When the Appellant appeared before the Principal Magistrate, after the brief facts had been agreed by her, the Magistrate asked her why she had stolen the identity card of the victim named in the third charge. The Appellant then said to an interpreter that she was looking for a job but she could not show any identity card to the prospective employer because she had lost her identity card. The Magistrate then asked her this question : "So in short, you stole the identity card in order to facilitate your looking for a job in Hong Kong? Is it correct?" And the Appellant said "Yes".

5. Mr Delaney has criticised that question asked by the Magistrate which Counsel said was a leading question. In any case, Counsel said there should have been a Newton hearing if the Magistrate wanted to find out why the identity card had been stolen.

6. I do not lend myself to that criticism. In my view, the Magistrate was quite entitled to try and find out more about the case. A Newton hearing is not necessary because a Newton hearing is normally only conducted when there is dispute between the parties as regards certain aspects of a particular case.

7. What Mr Delaney does submit is that the sentence of 15 months' imprisonment imposed on the identity card charge is excessive. He quoted the case which the Magistrate had relied upon, R. v. Shamim Nawaz [1994] 1 HKCLR 195, where, inter alia, Barnett J. had said at p.198 :

" In my judgment, it matters not whether the offender is an illegal immigrant or an overstayer. The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card. The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive."

That was the case which the Magistrate relied upon to pass the sentence of 15 months' imprisonment. Counsel also referred me to my own decision in Magistracy Appeal 596/1998, HKSAR v. Maheswari where I had referred to Nawaz and also to three other cases : R. v. Bashir Ahmed MA522 of 1993, R. v. Nadeem and Butt, MA359 of 1994 and R. v. Quazzafi MA655 of 1994. And I noted that Bashir Ahmed was decided in August 1993 whereas Nadeem and Butt was decided in July 1994, and Quazzafi was decided in August 1994; also that Shamim Nawaz was decided by Barnett J. prior to the latter two cases, namely in March 1994. I then said the following :

" The problem, as I see it, is that some Magistrates may follow the line of cases which decided that a person committing identity card offences, and who comes from a jurisdiction other than China or Vietnam, should be sentenced to what appears to be the tariff of 12 months whereas other Magistrates may follow Barnett J. and impose the sentence of 15 months' imprisonment where there is the use of somebody else's identity card.

That is a difference in approach by different High Court judges which I am not in a position to set right. It will have to be for the Court of Appeal, if a suitable case finds its way to that Court. Speaking for myself, I would say that the 15 months tariff suggested by Barnett J. should really only be followed if there is clear cut evidence that the use of somebody else's identity card or forged identity card has been resorted to, to try and obtain further employment in Hong Kong. An example would be where a defendant uses such an identity card to try to open a bank account in Hong Kong with a view to his salary from a job that he manages to find in Hong Kong being paid into that bank account."

In that case, the Appellant had produced an identity card which was asked to be shown by the police. This was an identity card which did not belong to her, but there was no evidence that that Appellant had indeed worked in Hong Kong or was trying to find employment by the use of the identity card which she had found and which belonged to somebody else. I allowed that Appellant's appeal and reduced the sentence on the charge of possession of an identity card relating to another person to one of nine months. That was on the basis that the starting point should be one of 12 months and taking into account the appellant's pleas of guilty and the fact she had a clear record, the sentence was reduced to nine months.

8. In the instant appeal, the Magistrate did not mention HKSAR v. Matheswari, nor am I aware that he was aware of that decision. Miss Pang, for the Respondent, has quite correctly submitted that given the two lines of authorities which differed one from the other, this Magistrate, and indeed any other Magistrate, should not be faulted or criticised for following one line as opposed to another. That is, of course, true and as I said in Matheswari, it is rather unfortunate that that had arisen. As I said in that case, I am not in a position to set that right. The difference in approach by different judges is unfortunate because, as has been said in the past quite often, the main benefit of guidelines is that they promote the important policy objective of consistency in sentencing. Guidelines not only assist sentencers but they also help Counsel to advise clients as to the anticipated sentence.

9. As Litton JA, as he then was, said in R.. v. Ng Fung King [1993] 2 HKCLR 219, at 221, the existence of a tariff ensures consistency of approach and eliminates the notion of 'judicial lottery' in being sentenced by one Magistrate rather than another.

10. I do not retract from what I said in Matheswari, and as can be gathered, my own view is that unless the defendant has actually used somebody else's identity card to either further his own stay in Hong Kong or to try and obtain employment in Hong Kong, then the lower tariff should be adopted. In this particular case because the identity card was only stolen 24 hours earlier, there obviously had not been any opportunity to use the identity card. But at the same time, it is right to say that this Appellant had not used the identity card to either obtain employment or further her stay in Hong Kong. That latter fact is manifested as Counsel had submitted, by the fact that when she went out she was not carrying the other person's identity card which was why when she was stopped by the police at the roadblock, she was not able to produce any proof of identity.

11. So my decision is that this appeal should be allowed and the sentence of 15 months' imprisonment imposed on the second charge should be reduced to nine months on the basis that the starting point should be one of 12 months, and taking into account the Appellant's pleas of guilty and the fact that she has a clear record, that will be the appropriate deduction. So the appeal is allowed to that extent. The sentences imposed on the first and third charges will remain as they are.

12. However, I just wish to mention in passing that in relation to the theft count, I do not think that in the circumstances which occurred in this case, that can be said to be a breach of trust on the part of the Appellant as the Magistrate had said, and which was one of the bases upon which he assessed the sentence for the theft charge. "Breach of trust" as that phrase has been used in the Courts envisages a relationship of employer and employee or any other relationship where trust is reposed. In this case, the Appellant and the victim happened to be friends, and the victim happened to be visiting the Appellant when the Appellant made use of the opportunity to steal her identity card.