SHER ALI KHAN v. HKSAR

FAMC No. 4 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 4 OF 2006 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 394 OF 2005)

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D E C I S I O N

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Mr Justice Bokhary Ag CJ:

1.  This is a very unusual situation.  On 14 April 2005 this applicant pleaded guilty before I.S.C. Candy, Esq. in the Magistrate’s Court to possession of an identity card relating to another person, contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap. 177, and to breach of condition of stay by way of overstaying, contrary to s.41 of the Immigration Ordinance, Cap. 115.  He was on the same day sentenced to a total of 15 months’ imprisonment.  This total was made up of consecutive terms of 12 months for the identity card offence and three months for the overstaying, he having overstayed by about 2½ years. 

2.  The applicant appealed against sentence to the High Court.  That appeal was heard and dismissed by Deputy Judge Carlson on 28 June 2005. 

3.  Then, on 26 January 2006 and therefore very much out of time, the applicant took out two applications: one for leave to appeal against sentence to the Court of Final Appeal and the other for bail pending appeal.  On the following day, 27 January 2006, the Registrar, being of the opinion that the application for leave to appeal to the Court of Final Appeal discloses no reasonable grounds for such leave, called upon the applicant under rule 7 of the Hong Kong Court of Final Appeal Rules to show cause before the Appeal Committee, by written submissions to be filed on or before 24 February 2006, why his leave application should not be dismissed by the Appeal Committee. 

4.  Also on 27 January 2006 I directed that this application for bail pending appeal be heard on 2 February 2006, which is today.  Given the intervening Chinese New Year break, that left the prosecution very little time indeed to prepare to meet the application for bail pending appeal.  But that cannot be helped.  Time is made extremely tight by the fact that the applicant is due to be released from custody on 9 February 2006.  And even though the urgency is due to the applicant’s own lateness, namely his lateness in applying for leave to appeal to the Court of Final Appeal and for bail pending appeal, the Judiciary, always highly protective of liberty, will do whatever it can reasonably do to avoid his applications being rendered nugatory by the passage of time. 

5.  Bail is opposed, and I have heard both sides on the matter.  It is doubly unfortunate that I am forced to take a view now of the applicant’s prospects of obtaining leave to appeal to the Court of Final Appeal.  I say doubly unfortunate for these reasons.  First, the question of leave is ultimately a matter for the Appeal Committee to decide after considering what the applicant can put forward under the rule 7 procedure and, if an oral hearing is ordered, also after holding such a hearing.  Secondly, the applicant’s application for legal aid is outstanding, and he is acting in person at present.  Notwithstanding all of that, the circumstances which I have outlined show that I have to take a view of those prospects now.  For even the leave application, let alone the appeal itself if leave is granted, would be rendered nugatory by the passage of time if the question of bail is not addressed promptly.  And addressing that question requires considering, as best as I can at this stage, whether there are any reasonable prospects of leave to appeal to the Court of Final Appeal being granted to the applicant. 

6.  In HKSAR v. Li Chang Li [2005] 1 HKLRD 864 the Court of Appeal gave a decision to the following effect.  In the absence of exceptional circumstances, the sentence upon a guilty plea to possession of a forged identity card or of an identity card relating to another person should be 12 months’ imprisonment whether the offender’s stay in Hong Kong is lawful or unlawful.  Where such card has been displayed or used to seek employment or extend the period of stay in Hong Kong, the sentence upon a guilty plea should be 15 months’ imprisonment.  And where there are exceptional mitigation factors, the sentencing court should exercise its discretion as appropriate in determining sentence. 

7.  For present purposes at least, I treat that decision as a proper general indication of the appropriate sentencing approach.  There has been considerable debate before me on the question of whether the applicant was working at the time of his arrest on 12 April 2005.  If he had been, the circumstances would have pointed strongly to his having used the identity card in question to obtain such work and remuneration for doing it.  Unfortunately the question of whether the applicant was working at the time of his arrest was not dealt with satisfactorily below.  The brief facts prepared by the police, while not as clear as they might have been, suggested that the applicant had been working at that time.  Unfortunately the magistrate did not put those facts to the applicant.  Instead he put to the applicant facts wholly silent on the question of whether he had been working at the time of his arrest. 

8.  Before me, the applicant asserted that he had not been working at the time of his arrest.  He did however admit before me that he had used the identity card in question to avoid discovery of the fact of his overstaying.  Therefore he did in that sense display it, doing so in order to continue and prolong his unlawful stay in Hong Kong.  Moreover it can be said with some force that the total of 15 months’ imprisonment could in any event be justified on the basis that the sentence for overstaying could with justification have been made longer than three months.  On top of all of that, an appeal against sentence to the Court of Final Appeal is a wholly exceptional course even when not out of time, and the applicant is considerably out of time. 

9.  Giving the matter the best consideration I can on what I have before me including everything which the applicant said about his personal hardship among other things urged by him, I have come to the conclusion that he does not appear to have reasonable prospects of obtaining leave to appeal to the Court of Final Appeal.  It would not necessarily be a kindness to free the applicant on bail in the face of a strong probability that he would eventually have to return to prison to serve out the remaining few days of his sentence.  In the result, bail is refused.