HKSAR v. ZAIN

HCMA231/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.231 OF 2002

(ON APPEAL FROM TMCC 92 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant pleaded guilty before a magistrate to an offence of possession of an identity card relating to another person contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 in respect of which he was sentenced to 15 months' imprisonment; he pleaded guilty also to an offence of knowingly misleading a police officer contrary to section 64(b) of the Police Force Ordinance, Cap. 232 in respect of which he was sentenced to two months' imprisonment; and thirdly he pleaded guilty to an offence of breach of condition of stay by overstaying in Hong Kong contrary to section 41 of the Immigration Ordinance, Cap. 115 in respect of which he was sentenced to three months' imprisonment. All sentences were ordered to be served concurrently and resulted therefore in a totality of 15 months' imprisonment.

3. The appellant complains generally that the sentences imposed upon him for these offences were too severe, although it is fair to say that the primary complaint he makes is that the sentence of 15 months' imprisonment imposed upon him for the offence of possession of another person's identity card, being the 1st charged offence, was wrongly imposed on the basis that the identity card was to be used to further his stay in Hong Kong when there was in fact no evidence of that.

4. The facts of the case as presented to the magistrate were that the appellant was a lawful visitor to Hong Kong , and was allowed to stay until 3 December 2000. The appellant overstayed that period by some 13 months before his arrest by police on 7 January 2002. That forms the basis of the 3rd charged offence. The appellant was arrested during a police raid on premises where he had recently rented a room. When he was arrested he was searched and the identity card, the subject of the 1st charged offence was found in his trousers pocket. He said he had found it four days' earlier and picked it up.

5. Subsequently, during a police interview he gave false personal particulars to the interviewing officer, and that formed the basis of the 2nd charged offence. Those false particulars in no way related to the charged identity card.

6. So far as the imposition of the sentence of 15 months' imprisonment in respect of the 1st charged offence relating to possession of that identity card is concerned, the magistrate, in his Reasons for Sentence, said this:

"Relaying upon HKSAR v Chan Man Ho (HCMA 105/99), I was of the view that the appropriate sentence on a plea of guilty to the 1st charge was 15 months' imprisonment, taking into account that, because he was an overstayer, his presence in Hong Kong was illegal at the time of this offence. Taking into account the circumstance that he was an overstayer, I was sure that he had the forged identity card for the purpose of obtaining employment in Hong Kong and/or otherwise furthering his overstaying here. This inference was irresistible and I rejected the submission that he had no intention to use the card. Accordingly I imposed a sentence of 15 months' imprisonment on the 1st charge."

7. The evidence on which this finding was based was wholly contained in the brief facts which had been agreed and provided to the magistrate at the time of sentencing. Those facts simply stated that the charged identity card was found in the trousers pocket of the appellant when he was searched and when questioned about it he told the police that he had found it inside the newly rented room where he had moved in some four days earlier. In the course of sentencing the appellant's counsel told the magistrate the appellant picked up the card and kept it out of curiosity. That is all that was before the magistrate in this regard.

8. It seems to me that, perhaps understandably, the magistrate has, no doubt from his past extensive experience, assumed that a person such as the appellant would be in Hong Kong to unlawfully work and that is why he overstayed and that therefore the identity card was to be used to further that overstaying. The magistrate is very likely right in this series of assumptions. But before an inference can be properly drawn to that effect there must be some evidence supporting that inference and it must be such as to lead to the conclusion that such an inference is the only reasonable inference.

9. With respect to the learned magistrate the inference he drew against the appellant in this regard seems to me to be based more on his own experience of past cases that on any particular evidence before him. If the magistrate were right in this regard it would mean that any person such as the appellant who is an overstayer with an identity card of another person in his possession should be inferred to have had the particular identity card for the purpose of obtaining employment or otherwise of furthering his overstaying. No doubt there is a considerable likelihood of this. But other reasonable possibilities may also exist. Even if the appellant's version of events was wholly rejected, it is not inconceivable that he used the card for purposes unconnected to overstaying or seeking employment. The presentation of an identity card is a frequent requirement of daily life in Hong Kong in circumstances where its use may not be connected to overstaying. As was said in Attorney General v. Lam Ping Chun [1989] 1 HKLR 161:

"It is of course possible to envisage, as was accepted in Lau Chung-kwan, cases where the use of a forged or another person's identity card is in no way related to the offenders unlawful presence in Hong Kong. Those cases naturally are very different and will need to be treated differently."

10. In short before such an inference as was drawn by the magistrate can be drawn there must be evidence before the court connecting a defendant's possession of such an identity card with his intended use of it to further his stay here. In the absence of any such evidence there is no basis for any inference, such as that drawn by the magistrate in this case, to be drawn. In the present case there was no such evidence. Judicial notice cannot be taken that persons such as the appellant use such documents to obtain employment in Hong Kong. Such an approach cannot be substituted for evidence.

11. For that reason in my judgment the appellant was sentenced on the wrong basis. In the absence of any such inference as was drawn, all that can be shown was that the appellant was in possession of the identity card. The appellant then should have been treated as falling into that category of offender where his possession of the identity card was unproven to have been related to his overstaying in Hong Kong.

12. In R v. Shamim Nawaz [1994] 1 HKCLR 195, Barnett J found that where there was no link established between the possession of the charged identity card and the appellant overstaying in Hong Kong the appropriate sentence was three months' imprisonment after a plea of guilty. That was the level of sentence also imposed by Leong J (as he then was) in R. v. Ghazanfar Iqbal HCMA 654/1993.

13. Accordingly I propose to set aside the sentence of 15 months' imprisonment in respect of the 1st charged offence and substitute for it a sentence of three months' imprisonment.

14. So far as the sentence of two months' imprisonment imposed in respect of the 2nd charged offence is concerned, in my judgment it cannot be criticised. The appellant embarked on a blatant and direct course of misleading the police officer by effectively pretending to the police, knowing that he had committed an offence and was being investigated for it, that he was someone else. In my judgment that was a serious course of misconduct capable of causing considerable obstruction to the police investigation and subsequently to the course of justice. I do not think the sentence of two months' imprisonment imposed in that regard was too severe.

15. So far as the sentence of three months' imprisonment imposed in respect of the appellant's unlawful overstaying in Hong Kong is concerned, in my view the period of the overstay was significant. The appellant had overstayed beyond the allowed time by more than a year. He had rented a room for himself and obviously would have continued to stay in Hong Kong had he not been arrested by the police. There can be no particular sliding scale or tariff of penalty relating to the sentencing of overstayers. The circumstances of each case differ. In general terms the period of the overstaying is the primary factor in sentence. But other factors may fall to be considered such as the reason for the appellant overstaying or the degree to which the overstayer has cemented his stay in Hong Kong by, for example, renting premises to stay, obtaining work or forming other bonds with the community, all of which may suggest an intention to overstay for a considerable period of time. In my judgment the sentence of three months' imprisonment cannot be said to be too severe in the circumstances of this case.

16. Finally so far as totality of sentences is concerned, in my judgment the 1st and 2nd charged offences are wholly separate factually. The 1st charged offence now having been sentenced on the basis of it being unconnected to the overstaying of the appellant, in my view the sentence for that offence should now be served consecutively to the sentences imposed in respect of the other two offences.

17. Accordingly I order as follows:

(1) The magistrate's sentence of 15 months' imprisonment imposed in respect of the 1st charged offence be set aside and substituted with a sentence of three months' imprisonment.

(2) That the sentences imposed in respect of the 2nd and 3rd charged offences be served concurrently with each other but consecutively to the sentence imposed in respect of the 1st charged offence. That is a totality of six months' imprisonment.

(3) The appeal against sentence is allowed to that extent.

(4) The activated sentence which is not the subject of this appeal will continue to be served consecutively to the above sentences.

That will result in a final totality of eight months' imprisonment.