R. v. WONG CHUNG FOON

Magistracy Appeal No.426 of 1994

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H E A D N O T E

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Sentence - possession of forged identity card by illegal immigrant. Enhanced sentence not justified if no benefit obtained.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 426 OF 1994

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J U D G M E N T

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1. Appellant pleaded guilty in North Kowloon Magistrates Court to three offences, namely Charge A: possession of a forged identity card, contrary to s.7A(1) of the Registration of Persons Ordinance, Cap. 117; Charge B: possession of a dangerous drug, contrary to s.8(1)(a) and s.8(2) of the Dangerous Drugs Ordinance, Cap.134; and Charge C: remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap.115.

2. He was sentenced by Mr Meredith to 18 months on Charge A, one month consecutive on Charge B and 15 months concurrent on Charge C, a total of 19 months.

3. On 14th March the police raided a male hostel in Lai Chi Kok Road and asked the appellant for proof of his identity. He produced an identity card in the name of another person which was later proved to be a forgery. The appellant admitted that he had unlawfully entered Hong Kong by boat in May 1992 and had bought the identity card in Shenzhen for 20,000 RMB. Four tablets containing 19.5 milligrammes of methadone hydrochloride were found in his wallet.

4. Mr Lee, for the appellant, submits that the magistrate was wrong to make an upward adjustment of the 15 months guideline sentence on Charge A since there were no aggravating circumstances such as the use of the identity card to obtain a benefit.

5. He relied on R. v. Lee Kit Shing, MA No.133/92, in which I held that keeping an identity card in a wallet, without evidence as to its future use, is not an aggravating factor. I note that that appellant was sentenced by the same magistrate.

6. In R. v. Fong Pan, MA No.480/93, Leonard, J. said at p.3:

"In the case of The Queen v. Lam Sai Ying, Mag. Cr. App. No.811 of 1991, I had occasion to say that where an identity card was used to obtain employment, it would be open to the magistrate to impose a sentence higher than that of 15 months. As I understand the guidelines of the Court of Appeal, they indicate that if an illegal immigrant does no more than carry an identity card so that he may show it to a law enforcement officer if he is challenged as to his immigration status then there is no ground for enhancing the sentence. Once he uses the card to obtain some benefit, then it is open to the court to impose an enhanced sentence. The main benefit which would enable an illegal immigration to remain unlawfully in Hong Kong is employment."

7. Magistrates should follow these authorities in the absence of a contrary decision by the Court of Appeal.

8. The appeal is allowed in part and the sentence on Charge A is reduced to 15 months.