HKSAR v. BAIG MIRZA FAISAL

HCMA185/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 185 OF 2015

(ON APPEAL FROM ESCC 4055 OF 2014)

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J U D G M E N T

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1.  The appellant was convicted of one count of ‘using a forged identity card’[1]. Mr Lee Siu Ho, magistrate, sentenced him to 21 months imprisonment. He appealed against both conviction and sentence. After considering the arguments, I dismissed the appeal on conviction and sentence. The following is the reasons.

2.  At about 11:45am on 20 September 2014, the appellant was at G/F, Phase 2, International Finance Centre, Central.  Before entering the building for delivering some items, he produced a Hong Kong identity card (R255166(5)) to a security guard for registration.  The identity card bore his name ‘BAIG Mirza’ and his photograph.  The quality of the card was poor.  The security guard reported to the police.  The appellant was subsequently arrested.  The identity card was examined by a Government Chemist and was found to be forged as it bore no security features.[2]

3.  The appellant gave evidence that he obtained the identity card from a Pakistani whom he believed was a lawyer.  He had paid $100,000 for that.  He honestly believed that it was genuine.  The appellant explained the same to the arresting officer at the scene and to the interviewing officer during the video recorded interview.

Reasons for decision

4.  The magistrate stressed that if the appellant honestly believed or might honestly believe that the identity card was genuine, he should be acquitted despite he was unreasonable or negligent in coming to that belief.

5.  When assessing the credibility of the appellant and his propensity to commit the offence, the magistrate bore in mind that the appellant had a clear record in Hong Kong.  The appellant did not grow up in Hong Kong and was not well-educated.  His explanation to the security guard, the arresting officer and interviewing officer was consistent.

6.  The magistrate rejected the explanation of the appellant.  He rejected that the appellant honestly believed that the identity card was genuine after considering the following:

a The appellant was a torture claimant on recognizance granted by the Immigration Department since 2007.[3]  He had been interviewed by Immigration Officers, in relation to the torture claim, before he met the Pakistani lawyer.  It was inconceivable that he did not enquire about the procedures of applying for an identity card with the Immigration Department.

b The alleged Pakistani lawyer was introduced by a friend.  The appellant had no previous dealing with that Pakistani lawyer.  It was doubtful why he trusted that person.

c The appellant only met the alleged Pakistani Lawyer at a cabin-like office with no sign of a solicitor firm at Yuen Long.  There was no staff.

d The appellant met the alleged lawyer the second time at the sitting-out area near Immigration Tower, Wan Chai.  There were passers-by gathering around them.

e The alleged Pakistani lawyer gave the identity card to him at the same sitting-out area on a subsequent occasion.

f The appellant paid $100,000 for the identity card[4]. On the other hand he knew he had to stay in Hong Kong for seven years before qualifying as a permanent resident.

7.  The magistrate pointed out that the appellant had looked at the identity card carefully.  However, the issue date of the identity card was 2009 whereas the appellant said he obtained it from the Pakistani lawyer two and half years before his arrest on 20 September 2014.

8.  The appellant admitted that he did not obtain the identity card from the Immigration Department.  He had never made any enquiry.

9.  Having considered the evidence above, the magistrate concluded that the appellant must know that the identity card was forged.

Grounds of Appeal against conviction

10.  The appellant was unrepresented.  He was refused legal aid.  He did not file formal grounds of appeal.  He reiterated that he was deceived.  He honestly believed the identity card was genuine.  He urged this court to consider the declaration of his father and the document which recorded the report to the police in Pakistan by his father.

11.  During the hearing before this court on 18 May 2015, Mr Daryanani, Senior Public Prosecutor, fairly drew my attention to four arguable points which might be in favour of the appellant.  The points are as follows:

a There was no evidence proving that the identity card produced by the appellant was the one examined by the Government Chemist.  There was no evidence that the same identity card was produced during the trial. (chain of evidence point)

b The magistrate had not formally accepted the Government Chemist as an expert. (expert point)

c The magistrate might err in refusing to adjourn for the appellant to call his father. (adjournment point)

d The magistrate might err in refusing the production of the declaration of the appellant’s father and the document recording the report to the police in Pakistan. (document point)

12.  Despite those arguable points above, Mr Daryanani maintained that the appeal should be dismissed.

13.  Having considered the submission, I allowed the appellant to apply to the Legal Aid Department for reconsideration of the points raised by Mr Daryanani.[5]

14.  Legal aid was again refused on 2 June 2015.  This court heard the appeal on 29 June 2015.

Discussion

Chain of evidence point

15.  In the admitted facts, the appellant agreed that he used the subject identity card on the material date of the offence.  The card bore the photograph of the appellant.  The number was R255166(5).[6]

16.  In the statement of the Government Chemist, she mentioned that she examined the identity card bearing the same name and number.[7]

17.  In the record of interview, the identity card was shown to the appellant who confirmed that it was his card.[8]

18.  The subject identity card was produced during the trial as Exh P4 which bore the photograph of the appellant.  The number R255166(5) also matched.[9]

19.  Given the above, the only reasonable inference is that the same card was used by the appellant, examined by the Government Chemist and produced in the trial.

Expert point

20.  The statement of the Government Chemist (Exh P5) was produced under s 65B of the Criminal Procedure Ordinance.[10]  The magistrate accepted the entire content.  There was actually no dispute that the subject identity card was forged.  There was no need for the magistrate to formally accept the content as expert evidence.

21.  In my view, Mr Daryanani rightly pointed out that this point was not arguable.[11]

Adjournment point

22.  The magistrate had not mentioned this issue in his statement of findings.

23.  Mr Daryanani fairly revealed that on 12 January 2015 when this case came before the magistrate, the appellant applied for an adjournment so that he could arrange his father to be a witness. The magistrate refused but eventually adjourned the trial to 16 February 2015 for translation of the record of interview.

24.  On the trial date, the appellant informed the court that his father could not obtain a visa.  He asked for more time.  The magistrate refused.

25.  It is true that the adjournment was granted for translation of the record of interview.  However, it did not prevent the appellant from preparing his father to be called.  In fact, the appellant had done so but his father could not obtain a visa.  There was no information as to the reasons for that, nor was there any reasonable estimate as to the additional time needed.

26.  In passing, I note that the declaration of the appellant’s father, which the appellant sought to produce, was made on 27 September 2014.  It was one week after the appellant’s arrest.  Nearly 5 months had elapsed but the appellant still could not arrange his father to give evidence in the trial in February 2015.

27.  The appellant had not furnished any further information in this aspect during the appeal.

28.  By then, it was already five months after the offence.  Given the circumstances, coupled with the reasons below, the magistrate was right to refuse further adjournment.

Document point

29.  The appellant sought to produce two documents. The prosecution objected as their authenticity was doubtful.  The magistrate refused the production of these documents.  In my view, the magistrate was right.

30.  I have considered the content of the declaration dated 27 September 2014 allegedly made by the father of the appellant.  It only summarized the events leading to the payment of $100,000 to a Pakistani lawyer.  The appellant had already given evidence on this background.  The declaration added nothing further.

31.  The central issue in this case is whether the appellant might honestly believe that the subject identity card was genuine.  Even taking the content of the declaration to the highest, it cannot counter or weaken the magistrate’s reasons for rejecting the appellant’s evidence.

32.  According to the first paragraph of the declaration, the appellant contacted the Pakistani lawyer about two years ago in Hong Kong.  It was about 2012.  This supported the query raised by the magistrate who pointed out that the subject card was issued in 2009.

33.  As to the document recording the report to the police in Pakistan, it again repeated the basic facts as the declaration.  The fact that the appellant’s father was allegedly deceived could not take the appellant’s case any further.

34.  In my view, even if the documents were admitted, the content could not assist the appellant.

35.  The appellant repeated his defence in this appeal.  The magistrate had rightly rejected it.  In all, I dismiss the appeal against conviction.

Grounds of Appeal against sentence

36.  The appellant relied on the general ground that the sentence was too severe.  He pointed out that there was a case reported in the newspaper that a defendant was sentenced to 4 months imprisonment on a similar charge.

37.  The magistrate noted that the appellant had a clear record.  His mitigation was that he was not employed for the delivery work.  He did so only on the invitation of a friend.  He had to support his siblings and mother in Pakistan.  He pleaded for leniency.

38.  The magistrate stressed that using a forged identity card was a serious offence.  He pointed out that a deterrent sentence was necessary.  He saw no reason to depart from the principles under Li Cheung Li—a starting point of 15 months for those who pleaded guilty to using a forged identity card for seeking illegal employment or extension of stay in Hong Kong.[12]

39.  Having considered the nature and background of the offence, the magistrate ordered 21 months imprisonment as it was a conviction after trial.

40.  I agree with the reasoning of the magistrate.  There is no exceptional mitigating factor to reduce the sentence.  Even accepting what the appellant claimed that a lesser sentence was passed in another case, in the absence of details, it is not a ground to reduce the sentence.

41.  I dismiss the appeal against sentence.