HKSAR v. GAO SAIZHEN

HCMA 104/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 104 OF 2003

(ON APPEAL FROM WSCC 16 OF 2003)

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J U D G M E N T

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1. This Appellant appeals against a sentence of 15 months' imprisonment imposed on her for one offence of "Using a Forged Identity Card" and a sentence of 2 months' imprisonment imposed for an offence of "Breach of Condition of Stay". The Magistrate ordered both sentences to run concurrently, making a total of 15 months' imprisonment.

2. The facts to which the Appellant pleaded showed that she used a forged identity card to obtain employment during the currency of her stay as a visitor on a 2-way permit. Working is strictly prohibited in respect of those permits. During a raid on the rest home where she was working, she produced the forged identity card to the police and admitted buying it in Shenzhen for HK$2,000.00.

3. The Appellant had a clear record and put forward no special mitigation, other than family circumstances.

4. The Magistrate sentenced on Charge 1 noting that the period of the employment was lengthy, being commensurate with the length of her permitted stay a stay which was due to expire the day after the police raid. He considered Charge 2 merited a short concurrent term of imprisonment. He took a starting point of 3 months and reduced it to 2 months for the Appellant's plea.

5. The Appellant relied on the proforma grounds in her appeal and today expanded on those grounds slightly, by saying that she came to Hong Kong to find work because her husband died and she had three young children between 12 and 8, the elder son had liver disease. She told the Court that before her arrest on 2 January 2003, she had already resigned from her employment at the rest home and was going to return to China. She said her employer was in Court and could testify that she had resigned. The Appellant appeared not to have told the Magistrate that she had resigned, nor that she asked for her wages be made up to 1 January 2003 preparatory to her leaving Hong Kong.

6. The employer, Madam Leung Pui Yi told this Court that the Appellant told her that she would not return to work on 2 January and that she made her wages up to 1 January. Madam Leung does not appear to have told the police of this at the time of the raid on her premises. The Appellant hoped for leniency so that her sentence could be reduced as she wished to return to her village to care for her children. She said that her mother looked after the children when she came to Hong Kong but she was aged over 70 and there is no one to care for the children, except herself.

7. The Respondent in written submissions pointed out, correctly, that there was no support on the facts for the contention in the Magistrate's Statement of Findings that the employment would have extended past the expiry of the Appellant's lawful stay in Hong Kong, but for the police visit. I agree. The Appellant's behaviour gives rise to that suspicion but no more.

8. It remains therefore to consider whether the sentence was correctly assessed, or whether the Magistrate's suspicions contributed unfairly to the length of the sentence on Charge 1.

9. On the basis of Category 5 in HKSAR v. Chan Man-mo [2001] 1 HKLRD 121, a sentence of around 12 months is proper after plea for a person using a forged identity card to obtain employment while legally in Hong Kong. Category 6 indicates that actual production of a forged identity card to police in the course of a check, is an aggravating feature which attracts a further 2 months' sentence. On that basis, the sentence imposed on Charge 1 is neither excessive nor wrong in principle.

10. The sentence on Charge 2 is not excessive or wrong in principal either and was ordered to be concurrent as is usual for such offence. I note that offences where terms of a two-way permit are breached because the holder obtains employment in Hong Kong, are becoming more and more common. It may be time for longer, consecutive sentences to be considered for such offences, even where, as here, there is no element of overstaying.

11. This appeal is dismissed.