R. v. WONG CHI KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 111 OF 1997

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J U D G M E N T

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1. The appellant was convicted by his own plea of using an identity card relating to another person and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. The appellant was arrested on 9^th January 1997 when he went to the bank to make enquiry on an account he opened with the identity card in question. He admitted before the magistrate that he sneaked into Hong Kong from China and later he found the identity card and used it to open a bank account.

3. He was sentenced to 6 months and 10 months concurrent imprisonment respectively on the two charges. He had filed notice of appeal against sentence and conviction but he now appealed against conviction on the second charge only, abandoning the rest of his appeal.

4. The appellant had filed an affirmation to the effect that he entered Hong Kong on a valid passport of the PRC and a valid tourist visa which allowed him to stay until 24^th February 1996. He exhibited his passport and his identity card both of which were in the name of Mao Wensheng but both bore his photograph. He explained that he did not tell the authorities about the passport because he thought an overstayer would be more heavily punished than an illegal immigrant and he did not want the authorities to inform his family of his predicament. Further, he stated that on the day he pleaded guilty he did not have sufficient time to discuss with the duty lawyer about his case.

5. When the appeal was first heard by Patrick Chan J. (as he then was) the matter was adjourned for the documents exhibited to be examined by the Government Chemist as to their genuineness.

6. Mr Kwok, counsel for the appellant, informed me today that the examination had now been completed and the Government Chemist could not be sure if the passport was genuine or otherwise or had been tampered with. Ms Cheng for the prosecution confirmed that there was no evidence that the passport was not genuine. There was also no evidence that the appellant was not also known as Mao Wensheng.

7. The passport showed that the appellant had entered Hong Kong on 17^th February 1996 and was permitted to stay until 24^th February 1996. That being the case, the appellant had been overstaying in Hong Kong until he was arrested on 9^th January 1997. On the date of the offence the appellant was not remaining in Hong Kong after having landed unlawfully here. The true facts do not support the 2^nd charge.

8. The appellant was sentenced on 11^th January 1997 and he had served a period of 5 months, the equivalent of more than a 7 months term and more than his 6 months term on the 1^st charge.

9. The prosecution indicated that in such circumstances no retrial would be sought if the court quashed the conviction.

10. The appeal is allowed and the conviction on the 2^nd charge is quashed. There will be no order for retrial.