HKSAR v. XU HOUDE

HCMA562/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 562 OF 2003

(ON APPEAL FROM ESCC 1423 OF 2003)

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J U D G M E N T

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1. On 15 May 2003 the appellant was convicted upon his own plea of an offence of possessing a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177 and he was sentenced to a term of eight months' imprisonment.

2. He appeals against that sentence initially saying that it was 'too severe'.

3. The facts of the offence to which the appellant pleaded guilty appear sufficiently in the magistrate's 'Reasons for Sentence' as follows :

"1. The appellant appeals against sentence of 8 months imprisonment having pleaded guilty to one charge of possession of a forged identity card contrary to section 7A(1) of the Registration of Persons Ordinance, Chapter 177. The duty lawyer represented the appellant.

2. The admitted facts were that at 0857 hours on the 9th May 2003 the police stopped the appellant who was seen acting suspiciously. Upon search the forged identity card, which bore the appellant's photograph, was found in his rucksack. Under caution the appellant admitted he bought the card in Shenzen and that he wanted to look for a job in Hong Kong.

3. In passing sentence I took into account the appellant's plea of guilty, family circumstances and his health condition. I also took into account the appellant lawfully entered Hong Kong on the 5th May 2003 by virtue of being the holder of a two-way permit, which permitted him to stay until the 18th May.

4. I considered the case of Shamin Nawaz [1994] 1 HKCLR 195 where the court held that if possession of another's identity card was to obtain employment or otherwise further the remaining in Hong Kong, 15 months imprisonment upon a guilty plea was not excessive. The judgment together with a number of other judgments was reviewed ... in CHAN Man-mo MA 1059/1999 and ... in CHEN Han-wei MA 148/2003.

5. I was satisfied that the facts of the present case were similar in all material respects to the facts in CHEN Han-wei. I was satisfied that the only inference to draw, from the appellant purchasing a forged identity card in Shenzen for the purpose of obtaining employment in Hong Kong, was that he intended to work beyond the period allowed by his visa."

4. Mr Petrus Chan, for the appellant, has 'perfected' the following two grounds of appeal :

"1. The learned magistrate erred in finding that the Appellant intended to stay over the permitted period.

2. The sentence of 8 months' imprisonment was manifestly excessive and too severe under all the circumstances. The Appellant will rely on HKSAR v Chan Man Mo [2001] 1 HKLRD 121."

5. With respect I disagree. The inference drawn by the magistrate concerning the appellant's intention was properly drawn and cannot, in my view, sensibly be criticised.

6. The sentence imposed was entirely appropriate [See HKSAR v. Chen Han Wei (supra)] and this appeal is dismissed.