HKSAR v. SRIWARADANA KOTSINGALA VITHARANGHE G T

HCMA 1244/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1244 OF 2003

(ON APPEAL FROM KCCC 12737/2003)

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J U D G M E N T

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1. This Appellant was found guilty after trial of two charges; Possession of an Identity Card Relating to Another Person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 and Breach of Condition of Stay; the period of overstaying was 1 year and 9 months.

2. The Appellant was stopped and searched by police and asked for proof of identity. He produced a Hong Kong identity card relating to somebody else for inspection. The photograph did not resemble him and he was arrested. He was found to be an overstayer.

3. The facts were disputed in court and the Magistrate held a trial of the issue at which a police officer and the Appellant gave evidence. The Magistrate accepted the police officer's evidence and rejected that of the Appellant.

4. In sentencing, the Magistrate took 12 months as the starting point for charge 1. He drew a distinction between the person who uses an identity card belonging to another which obviously does not bear that person's photograph and the person who arranges for a forged identity card to be made with his own photo enclosed. In taking 12 months as the starting point, the Magistrate deviated from the 15 months which was the usual sentence.

5. He reduced the term by a quarter to 9 months, on the basis that because of his challenge to the facts the Appellant was not entitled to the 1/3 discount for the plea. He imposed a comparatively light sentence of 2 months for the second count and, correctly, ordered that it should be consecutive.

6. The Appellant applied to review the sentences. That was heard on 7 November 2003 when the sentences were confirmed. He was represented at the trial but not on the review. Today, the Appellant said that the sentence was too severe as he has family problems. His wife's brother was ill with a kidney ailment which occasioned his wife's father to donate a kidney. His mother was sick with chest pains. I note from his mitigation at trial that the mother was reported to have hypertension and ischemic heart disease.

7. The Appellant said that his and his wife's family were in a desperate situation mainly because of lack of money. While one sympathises with those family problems, there is nothing put before the court today, or put before the Magistrate, which requires the court to alter the sentence. The sentence already appears to be lenient in terms of the usual sentence for such offences.

8. The appeal against sentence is dismissed.