HKSAR v. GOBIND RAI

1997, NO. MA 744

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. On 3 June 1997 Mr Cary YEUNG, Magistrate, sentenced the appellant on his plea to two charges. The first was for being in possession of another's identity card, and the second for being in breach of conditions of stay. He was sentenced to nine months' imprisonment on each charge, the terms to run concurrently.

2. On 26 June the learned magistrate reviewed his sentence for the 2nd charge by reducing it by one month, but the overall term remained the same.

3. The facts upon which the learned magistrate relied were that the appellant, a law student in India, arrived in Hong Kong in July 1994 with permission to stay only for two days. But he chose to stay on without authority in order to earn enough to provide for his family, and to enable him to complete his degree upon his return to India, programmed on his own schedule for this September.

4. In April this year there was an altercation in which he was involved and police were called to intervene. The appellant handed to them an identity card which he had on his person. The lawful holder was a friend who had left Hong Kong earlier in the month. When asked if it was his, he confessed to being an overstayer. I should say here that, in respect of the two offences, he pleaded at first instance to being an overstayer, and mid-trial to being in possession of another's ID card.

5. Matters which influenced the magistrate are revealed in his reasons for sentence.

6. He referred to the case R v Shamim Nawaz [1994] 1 HKCLR 196. In that case, for the same pair of offences, the magistrate at first instance imposed 15 months for the ID card offence and two months for the overstay, the terms to run concurrently. On appeal the first sentence was reduced to three months. Barnett J, the appellate judge, said that there was no indication that the offender was using or proposing to use the card to get work or to prolong his illegal stay in Hong Kong, distinguishing thus this sort of case from that where the possession of the card was for such purpose, rendering the offence much more serious.

7. In this case the magistrate said, quite rightly, that "alink between having the card and using it to prolong an unauthorised stay in Hong Kong depended on the circumstances of the case." Then, on the facts of this case, he said he was satisfied there was.

8. It was upon this basis, if I read his reasons correctly, that he adopted a starting point of 12 months for each charge, reducing the first by a quarter and the second by a third, no doubt to reflect the pleas of guilty entered at different times during the course of the trial.

9. Counsel for the appellant, Mr WONG, as his primary ground for appeal, argues that this was an incorrect approach. He says that without anything more than was already before the magistrate there was no causal link between the appellant's possession of the card and his pursuit of employment. He had been an overstayer for two and three-quarters years, and had only taken possession of the card within the month of his capture, it being left to him by a departing acquaintance. That, he says, indicated the appellant did not have it for the purpose of prolonging his stay. At any rate the magistrate should have held a Newton enquiry to establish whether or not there was a causal link between the possession of another's card and the appellant's desire to prolong his stay in Hong Kong.

10. Whether or not the learned magistrate was right to find this link, it is my role to decide whether, on the facts of the case, the sentence he imposed was wrong in principle, or manifestly excessive.

11. Miss TSE, counsel for the prosecution, says it was neither. She has produced several authorities which indicate that an overstayer or person not otherwise authorised to be in Hong Kong who presents to police, when asked to produce his identity card, someone else's , must expect for that offence a sentence of 12 months with appropriate discount for plea.

12. It seems to me that an overstayer who produces, on request, the card of another who has the same ethnic origins and similar characteristics, must be doing so to evade apprehension for being in Hong Kong without authority, and thus to prolong that illegal status. There can be no sensible alternative inference.

13. But is this what happened in this case? The brief facts, upon which I can solely rely in establishing what happened, on a careful perusal, do not state, as is the usual case, that the appellant was required to produce his identity card. The facts simply state that when the police officers arrived the appellant handed over the card. Furthermore, when asked if it was his, his immediate reply was, "I am an overstayer." This is tantamount to the response, "No, it is not." This, I believe, provides a material distinction between the facts of this case and those in the sort of cases to which Miss TSE referred, where an overstayer, asked to produce his ID card, presents one of the holder having similar characteristics with the obvious inference that he is holding himself out to be the lawful holder.

14. Of course it is possible that the appellant may have had the card for that purpose, for one might well ask, "Why otherwise did he have it?" But it is a well-heeled doctrine in sentencing that where there are two or more possible approaches, the defendant is entitled to have adopted that which is the more or most favourable.

15. In support of the appellant's cause is that he had already spent so long in Hong Kong without any card and established a modus operandi not to exacerbate his criminality in this way. I believe, thus, the learned magistrate erred in finding established a causal link between the possession of the ID card and his intention to use it to prolong his unauthorised stay in Hong Kong, and thus imposed a sentence which was wrong in principle.

16. In the circumstances, and assisted by Barnett J's ratio in Shamim Nawaz, for the 1st offence, Charge A, I allow the appeal and impose a sentence in substitution of that imposed at first instance of four months' imprisonment, the term being slightly longer than that to which Barnett J reduced the sentence in Shamim Nawaz, because of the late mid-trial plea.

17. As to the offence of being an overstayer, I am not certain how it was that the learned magistrate arrived at a sentence of eight months, beyond the obvious rationale that he adopted a starting point of 12 months with the appropriate reduction for plea. He may have been influenced by his intention to impose a similar sentence for the 1st charge, so that a concurrent term of such length would not make any difference.

18. If that was the case, it is the wrong approach. Each offence must carry a sentence appropriate to its culpability, and even for an overstay of so long a period as nearly three years a review of the cases reveals eight months after plea to be way too high.

19. Insofar as Charge B is concerned, the appeal is allowed, and a sentence of three months is substituted therefor.

20. There remains how these terms should be served. Having severed the link that the learned magistrate said bound them together I regard them as two separate offences, which will be served consecutively. An overall view in my view indicates that on the totality principle, this is not excessive.

21. The total sentence to be served is seven months.