HKSAR v. CHAN WAN SHUN

HCMA 29/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 29 OF 2003

(ON APPEAL FROM ESCC 3572/2002)

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J U D G M E N T

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1. This Appellant appeared in person today appealing 3 sentences totalling 16 months passed on her, the only ground of appeal being that the total sentence was too severe.

2. On Charge 1, she was sentenced to 15 months for Possession of a Forged Identity Card and on Charge 2 which was Breach of Condition of Stay, was sentenced to 4 months' imprisonment. For Using a Forged Identity Card, Charge 3, she was sentenced to 15 months' imprisonment. Sentences for Charges 1 and 3 were ordered to run concurrently and 1 month of the sentence on Charge 2 was ordered to run consecutively to the sentence on Charge 1.

3. The facts show that the police found the Appellant in the course of a raid on premises at North Point and she produced a forged identity card. She told the police she bought it in Shenzhen and that she had overstayed; the period of the overstay was almost 3 years from 18 December 1999 to 4 December 2002.

4. The Appellant had produced the forged identity card to the tenant of the premises in order to rent a room.

5. The Magistrate sentenced after taking into account the plea of guilty and the Appellant's family circumstances which were her husband's ill health and the death of her son.

6. The Magistrate sentenced having considered the authorities and the usual sentences for such offences. He noted that categories 2 and 6 of HKSAR v Chan Man Mo [2001] 1 HKLRD were apposite, but did not impose an additional 2 months for Charge 1, as he might have done, in respect of the production of the identity card to a police officer.

7. For the offence of overstaying, the Magistrate looked at various cases, took a starting point of 6 months for the 3 years overstay and sentenced Appellant to 4 months' imprisonment.

8. In his Reasons for Sentence, the Magistrate noted that he had overlooked the fact that this Appellant was subject to a suspended sentence of 1 month's imprisonment suspended for 2 years, passed on her on 19 March 1999, for an earlier breach of condition of stay. The Appellant had overstayed since 25 December 1999, within the period of suspension.

9. Today, in court, the Appellant reiterated the grounds that she put before the Magistrate. She asked for a reduction of her sentence saying she would not commit the same offence again.

10. Overall, I consider that the present sentences are neither wrong nor excessive. The Magistrate dealt leniently with the Appellant, taking into account the circumstances she put before him. The Magistrate, for instance, might well have made the sentence for the overstay, to be wholly consecutive to the sentences on Charges 1 and 3.

11. I leave the sentences unaltered in this case, noting the emphasis the Magistrate appeared to place on the personal circumstances of the Appellant. However, as a matter of principle, I activate the suspended sentence passed for the earlier offence of Breach of Condition of Stay and order that 1 month be consecutive to the sentences on Charges 1-3, making 17 months in total.

12. This appeal is dismissed.