HKSAR v. WANG BANG GUI

HCMA 49/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 49 OF 2003

(ON APPEAL FROM TMCC 3679/2002)

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J U D G M E N T

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1. This Appellant pleaded guilty in the magistracy to one charge of "Using a Forged Identity Card" contrary to section 7A(1) of the Registration of Persons Ordinance (Cap. 177) and he now appeals against the sentence of 10 months' imprisonment imposed on him for that offence.

2. The facts, which were admitted, indicated that the Appellant came to Hong Kong on a valid two-way permit for the period from 9 to 25 December 2002. On 9 December 2002, he entered a Tuen Mun restaurant seeking casual work. He asked Mr Yeung Man Yik, who was apparently the proprietor, although that is not stated in the facts, for casual work and on request produced to Mr Yeung an identity card, later found to be a forgery.

3. Appellant's counsel submits that there was no indication of Mr Yeung's status, but it does appear that it was he who was approached by the Appellant, he who asked for the identity card and he who questioned the Appellant about how long he would be in Hong Kong and for information that would normally be required from a job applicant by a proprietor. I imagine the magistrate had little difficulty in deciding that Mr Yeung had the status of proprietor, or manager, of the restaurant. Mr Yeung became suspicious of the Appellant's answers to his questions, and an off-duty police officer who was present at the time checked the card, found it of poor quality and reported to the police.

4. The Appellant later claimed that he bought the identity card in Shenzhen for the sum of RMB100. The card was found to be a forgery by the Government Chemist.

5. In considering sentence, the magistrate considered the authorities which had been set out and analysed in HKSAR v Chan Man Mo [2001] 1 HKLRD 121. On the basis of Point 5, he took a starting point of 15 months, gave the Appellant full credit for his guilty plea and sentenced him to 10 months' imprisonment.

6. Today, it has been argued that this sentence was wrong in principle and manifestly excessive as to the starting point and the court was referred to the case of R v Hip Ming Cheong a similar, though not identical, case, in which a 12 months sentence was apparently deduced to 6 months' imprisonment. Having read Hip Ming Cheong it is rather difficult to understand why that sentence was reduced, as it appears that that Appellant must have used the card to obtain employment and that was the basis on which the Magistrate had sentenced him to 12 months imprisonment.

7. In Chan Man Mo, the suggested sentence (point 5 at p. 130) for someone using a forged or somebody else's identity card to seek employment when his presence in Hong Kong was legal at the time of the offence, was around 12 months' imprisonment. The magistrate adopted a starting point of 15 months reduced it to 10 months for the plea of guilty. I note the sentences categorised in Chan Man Mo are all expressed as being imposed after a plea of guilty, making a starting point otiose.

8. The grounds of appeal advanced on behalf of the Appellant was that there was no evidence that, the proprietor, Mr Yeung, could have offered the Appellant's job. However, this is irrelevant in terms of deciding whether or not the offence was committed. It is quite clear, on the facts, that the Appellant did ask for a job and was using the forged identity card to obtain one.

9. The second point made by counsel for the Appellant was that there was no evidence that the Appellant, even if he had found employment, intended to overstay his visa period. Again this was a matter which is irrelevant in dealing with the offence. There was a complete prohibition on the Appellant obtaining employment whether he was in Hong Kong legally or not. If he did overstay, he could be charged additionally with that offence.

10. It was submitted further that the fact the proprietor handed the card to the off duty police officer was not an aggravating factor, in other words, the Appellant himself did not produce the card. That is the case, but the magistrate did not treat it as an aggravating factor. If the Appellant himself had handed the card to the police officer on request, it could have attracted a further 2 months to the sentence. (Point 6 p. 130)

11. I considered the authorities in Chan Man Mo as analysed by the learned judge in that case. The learned judge made it quite clear that the categorisation of suggested sentences were not guidelines in the sense of guidelines laid down by the Court of Appeal. They are, a useful analysis of current sentencing practices and no doubt magistrates find them helpful in attaining consistency of sentencing, bearing in mind the caveat that the sentences are not straitjackets.

12. I can see no indication that the magistrate erred in imposing this sentence and there is no valid reason to interfere with it. This appeal is dismissed.