R. v. HO HON WING and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.151 OF 1995

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J U D G M E N T

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1. The 2nd appellant pleaded guilty to one count of using an identity card of another person and another count of breach of condition of stay. The 3rd appellant was also convicted on his own plea of two similar charges. Both of them were sentenced to 15 months' imprisonment in respect of the 1st count and 3 months on the 2nd count, both sentences to run concurrently.

2. It appears that the 2nd appellant came with a Chinese permit and he bought an identity card and used it to get employment. He had unfortunately or fortunately worked only for about 2 days. The 3rd appellant was in a similar position. He came with a Chinese permit, bought a forged Hong Kong identity card and managed to work for 3 days before he was arrested.

3. There was little or no mitigation put on their behalf before the learned magistrate. They were then acting in person. Suffice it to say that they came to Hong Kong for economic reasons. The usual tariff for this type of offences is 15 months' imprisonment unless there are special circumstances or other humanitarian factors. None was put forward before the learned magistrate. I think Counsel for the prosecution rightly pointed out that in a case of this nature, where the appellant is not only an illegal immigrant but also making use of forged documents not belonging to himself, the court should look at the matter in an even more serious light.

4. Before me, there are two affirmations with exhibits which consisted of letters from relatives of the appellants in China and, I must say, a very home-made certificate from a hospital in China, and another from an office of one of the local authorities. These included letters from the father, a certificate setting out the conditions of their close relatives in China and another certificate regarding the death of the wife of one appellant. The 2nd appellant said that he owed people money in China. He had to support his family and because of his imprisonment in Hong Kong, the wife could not stand the pressure and killed herself. He had a father who is now more than 70 years old who had to support the whole family and to take care of the children. In respect of the 3rd appellant, he said that his parents had passed away and his grandmother was 80 years old suffering from anaemia and various other heart conditions. He had 4 daughters from the age of 1 to 5. The grandmother was always sick and the family was poor.

5. I must say that I have seen many of these certificates before. Unfortunately, although one suspects that it must be quite a coincidence that these people keep coming up with certificates of death or ill-health of relatives and friends in China, however, I sympathize with the Crown in that there is very little the authorities in Hong Kong can do to verify these home-made certificates. I have in fact very grave suspicion on these certificates. But the Crown is simply not in any position to challenge them.

6. In this case, although I am not too happy with the documentation before me, I do not blame Counsel for this. Obviously he had done all he could to tender these certificates to the court. If the certificates were genuine and if the circumstances and conditions of the relatives and friends in China as described were genuine, these facts do amount to special circumstances and humanitarian factors which would persuade the court to depart from the usual tariff of 15 months.

7. I bear in mind that the two appellants had, in fact, been in custody since October 1994 and this amounted to almost 8 months' imprisonment. So in the circumstances, I would reluctantly allow the appeal and reduce the sentences to 12 months in respect of the 1st count for both appellants.

8. I must utter a word of warning to the two appellants and that is : next time, do not tell me that another friend or another relatives of your has died or is suffering from any heart disease. When you go back to China, tell your friends and relatives, it is not worthwhile to come to Hong Kong. There is no job for you, no place for you, no facilities for 12 billion people in Hong Kong. Tell them that in future, certificates of this nature will not be accepted by the court.