HKSAR v. CHAN TSAN FAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 312/98

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J U D G M E N T

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1. The Appellant in this matter was convicted after trial of an offence contrary to Section 7A(1a) of the Registration of Persons Ordinance, Cap. 177; that is, without lawful authority or reasonable excuse, having in his possession an identity card which relates to somebody other than himself. The Magistrate came to a finding of guilty on the basis that the Appellant had admitted finding the card and intended to use it to seek employment. That was why he did not hand it to the police but retained it in his possession. The Appellant was sentenced to 12 months imprisonment.

2. It is against the severity of this sentence which the Appellant now appeals and in this regard he has been assisted by counsel for the Government who has brought to my attention the authority of R. v. Shamin Nawaz [1994] 1 HKCLR 195. The relevant portion of the headnote of that judgment reads:

1. Whether an offender is an illegal immigrant or an overstayer is not what matters. The issue is the presence or absence of a link between the offender's status in Hong Kong and possession of the identity card. If possession is to obtain employment or otherwise further the remaining in Hong Kong fifteen months imprisonment upon a guilty plea is not excessive. Where there is no link between the offender's status in Hong Kong and the identity card, the offence relating to the identity card is to be treated as unconnected with the immigration offence.

2. As the necessary link between the offender's status and the identity card was not established, the offence of possession of an identity card relating to another person had to be dealt with as unconnected to the immigration offence.

3. In the matter now before me, it is accepted that, on the date of his arrest, the Appellant was lawfully in Hong Kong in terms of what is commonly called a 'two-way permit'. Indeed, he still had three weeks to run on that permit. Although he admitted retaining this identity card to obtain employment, there was no evidence that he intended to remain in Hong Kong past the time when he was lawfully entitled to be here, whether in employment or otherwise.

4. In fairness to the Magistrate, of course, he was not made aware of R. v. Shamin Nawaz. That judgment however, makes it clear that where the offence of possessing the identity card is not shown to be linked to staying in Hong Kong unlawfully then the basis for sentencing must be different. Indeed in that judgment Barnett J. said as follows:

"In the present case, no link was established by the magistrate. Accordingly, the offence fell to be dealt with as being unconnected with the immigration offence. In Mag App No. 654 of 1993, R. v. Ghazanfar Iqbal, Leong, J. reduced a sentence of 9 months' imprisonment to one of 3 months. The offender in that case was a Pakistani national who during the currency of his permission to stay in Hong Kong was found in possession of an identity card belonging to another. I think that is the appropriate sentence for an offence of this nature."

5. In my judgment, therefore, the sentence of 12 months imposed on this Appellant was wrong in principle. The appropriate sentence should have been one of 3 months. I am told by counsel who appears for the Government that the Appellant has already effectively served a period of time longer than that. I therefore sentence this Appellant to such period of imprisonment as will ensure his immediate release and repatriation to the Mainland.