HKSAR v. FARID KHAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1126/97

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J U D G M E N T

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1. The Appellant was convicted after plea on the 5th November 1997 of possession of a forged Hong Kong identity card. Appellant had come legally to Hong Kong on 4th August 1997. He was picked up by the police on the 21st September 1997. In that time he had managed to lose his passport and was well in excess of the 4 days stay that had been granted to him on entry by the Immigration Department. When stopped he produced an identity card in another person's name and which bore a photograph different from his own. Examination showed the photo had been substituted and the particulars altered so Appellant was charged with this offence.

2. Appellant appeals now against a sentence of 12 months imprisonment imposed on him.

3. The duty lawyer in the Magistracy submitted that Appellant had reported the loss of his Pakistani passport to the police but was given no documentary acknowledgement of the loss. He apparently reported to the Pakistan Consulate that he had lost his passport and was given a receipt, although that was not produced to the court. In mitigation, he told the Magistrate that the Appellant had originally expected to be given a three month visa but when he was given only 4 days decided to stay on regardless. Appellant apparently wished to buy garments here and send them to Pakistan for his garment business.

4. The Magistrate in sentencing took those matters into account. He thought it was quite clear from the circumstances that Appellant intended to pass himself off as the true holder of the card and he had in mind at the time he sentenced the case of R. v. Shamin Nawaz [1994] 1 HKCLR 195 where Barnett J. said that for the 15 months' sentence guideline to apply, there had to be a link between the offender's status in Hong Kong and the identity card. The Magistrate found it difficult to think of any reason why this particular offender would have been in possession of such an identity card if he had not intended to use it to further his unlawful stay in Hong Kong whatever his purpose in wishing to remain might have been.

5. This is yet another of the many cases where a Pakistani national comes to Hong Kong, overstays, or is about to overstay, when he loses his travel document and then happily finds, in the street, or in Victoria Park, or in some other convenient place, an identity card not only in the name of a Pakistani national but by a happier coincidence bearing a photograph of a Pakistani national. Such cases are coming before the court on an increasingly regular basis and are almost as much of a nuisance, though not in such number as, cases relating to immigrants from China.

6. For some reason not entirely clear, this type of overstayer has been sentenced for periods of 12 months imprisonment rather than the standard 15 months imposed on illegal immigrants from China. It is difficult to see how that can be justified in the circumstances of this type of case and, particularly in view of the increasing numbers of Pakistani nationals who appear to be happily finding other people's identity cards in Hong Kong. It is my view that the sentences in relation to this type of offence should probably be increased in future so that there is a 15-month sentence across the board.

7. However, in this case I consider that it would be unjust to increase that sentence using this Appellant and I reduce the sentence imposed to the 12 months that has been commonly accepted and give the usual 1/3 discount for plea. Appellant will be sentenced to 8 months' imprisonment.