HKSAR v. WU HUI WEN

HCMA 576/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 576 OF 2001

(ON APPEAL FROM FLCC 964/2001)

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J U D G M E N T

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1. The Appellant in this case was charged with two charges before the learned Magistrate. The first charge was one of possession of a forged identity card and the second charge was for overstaying since 26 April 2001 to the date of his arrest. The Defendant pleaded guilty to both charges and he was represented by a lawyer from the duty lawyer scheme. After hearing mitigation, the learned Magistrate then sentenced the Appellant to a term of 18 months' imprisonment on Charge 1 and 7 days' imprisonment on Charge 2. Both sentences to be served concurrently. The Appellant now appeals against that sentence.

2. The fact of the case is quite simple. On the 15th of May 2001, the Appellant was intercepted by a patrolling police officer who asked for his proof of identity. The Appellant produced a PRC passport which show that he had overstayed, and it was upon a search of the Appellant that the forged identity card, the subject matter of Charge 1, was discovered. Under caution, the Appellant had admitted that he had bought the forged identity card from a male person in Shenzhen on the 18th of April 2001, which was one day prior to coming to Hong Kong. He said that the forged identity card was for him to find a job in Hong Kong. In 1994, the Appellant has a previous conviction of using a forged identity card and remaining in Hong Kong without the authority of the Immigration of having landed unlawfully and for this offence, he was sentenced to 15 months' imprisonment.

3. In sentencing the Appellant, the learned Magistrate took into account the fact that the Appellant's case is different from the case of Shamin Nawaz MA No. 804 of 1993 where the Appellant in that case was only in possession of a lost identity card and the learned Magistrate accepted that the possession of this forged identity card by the Appellant was for the purpose of obtaining employment in Hong Kong. He took into account the fact that the Appellant had a similar previous conviction as an aggravating factor and therefore he determined that an appropriate sentence with the 18 months' imprisonment as opposed to the normal 15 months' imprisonment with Charge 1.

4. The Appellant appeals this morning on the ground that 18 months' imprisonment was manifestly excessive in the circumstances because :

(1) the increase of 3 months from the normal 15 months' imprisonment is not justified because the Appellant had only offended once before in 1994 and so it does not bring him into the category of persistent or constant repetition as the Court of Appeal said in HKSAR v Chan Pui Chi case in 1999 and that the public does not require protection from him.

5. The case of Chan Pui Chi was reported in 1999 [HKLRD 830] and at page 834 the Court of Appeal said this:

"The Court, in other words, is passing a deterrent sentence on the persistent offender, from whom the public needs protection, which is often unnecessary on a first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected."

6. Mr Burkett, in his submission this morning, said that this was not one of the more serious offences in the catalogue of crime in Hong Kong. Obviously, it is not on a par with more serious criminal offences like murder, rapes, etc. but it is a very serious offence for Hong Kong because it is the difficulty of detection in cases of this nature, the ease with which people forge identity cards for sale in order to facilitate people who come to Hong Kong to work illegally, and also it affects society because it deprives the proper residents of the SAR from getting the employment that would have gone to them if not for people like the Appellant who are able to obtain jobs on the strength of forged identity cards. In this sense, I therefore consider that the gravity of the crime together with the fact that this is the Appellant's second offence allows the Magistrate to properly consider an enhancement of the starting point in this case.

7. The second point that Mr Burkett drew to my attention was that no credit was given to the Appellant because he did not produce the forged identity card to the police when he was asked for his proof of identity. He refers me to the case of HKSAR v Chan Man Mo reported in 2001 [1 HKLRD 121] and the relevant passage which is at page 130 where her ladyship, Madam Justice Bokhary, had this to say in paragraph 6:

"It is an element of aggravation if an offender, whether here legally or illegally, actually produced a forged or somebody else's identity card to a police officer conducting an identity card check. Such conduct ought to be reflected by about an extra 2 months' imprisonment."

Her ladyship went on to say:

"Another way of putting it would be that it is an element of mitigation if the offender refrained from producing the identity card to the officer conducting the check."

8. From a reading of the passage, it is clear that her ladyship had in mind that it is an aggravating feature which calls for an increase in the sentence from 15 months by 2 months if an appellant produced his forged identity upon being stopped by the authorities. In my opinion, what she was saying was that if he did not do so, then of course it is not an aggravating feature and which the learned Magistrate may take into account. In this case, the learned Magistrate did not mention this fact, which is true, but it was a fact which is known to him because it was in the facts which was admitted that the forged identity card was found by the police officer after he had stopped the Appellant, so this was something in his mind when he considered the appropriate sentence in this case.

9. In all these circumstances, I do not find that the sentence of 18 months' imprisonment is manifestly excessive or that the learned Magistrate had committed an error in coming to the sentence of 18 months' imprisonment. It is a severe sentence but it is not manifestly excessive, so I dismiss the appeal. The sentence is confirmed.