HKSAR v. SRI LESTARI

HCMA 390/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO HCMA 390 OF 2014

(ON APPEAL FROM ESCC 1762 OF 2014)

____________

______________

J U D G M E N T

______________

1.  On 22 May 2014, the appellant was convicted on her own plea by Ms Bina Chainrai, Principal Magistrate, at Eastern Magistracy of one charge of using a forged identity card (Charge 1) and one charge of breach of condition of stay (Charge 2) and sentenced to 16 months’ imprisonment. The appellant now appeals against her sentence only.

2.  On 12 May 2014, the appellant sought to use a forged identity card to open a bank account.  The bank staff at the time were suspicious and alerted the police.  The police attended the bank and upon inquiry confirmed that the number on the identity card was not a valid one.  She was arrested and a check of immigration records revealed that her employment contract as a domestic helper had been terminated on 10 December 2010 and that she was required to leave Hong Kong by 24 December 2010.

3.  The magistrate sentenced the appellant to 15 months’ imprisonment on Charge 1 and 2 months’ imprisonment on Charge 2 with 1 month of the sentence on Charge 2 ordered to run consecutively to the sentence on Charge 1, making a total sentence of 16 months’ imprisonment.  The magistrate took as a starting point on Charge 2 of 3 months’ imprisonment which she reduced by one third for the plea of guilty to 2 months’ imprisonment. 

4.  The relevant case authorities on sentence are clear and except in exceptional circumstances an immediate custodial sentence of 15 months’ imprisonment is appropriate for an offence of using a forged identity card.  The relevant authority is HKSAR v Li Chang-li [2005] 1 HKLRD 864.  There has to be exceptional circumstances or humanitarian considerations to warrant departing from the sentence of 15 months’ imprisonment that is the norm on a plea of guilty even for a first offender for an offence of using a forged identity card.

5.  The appellant appears in person.  She has submitted a letter to the court apologising for her wrongdoing and claiming that her previous identity card was altered to a different number and that she had been told by the person who did it for her that she could use it to open a bank account.  The alteration consisted of changing her previous identity card number from W806416(7) to J806416(7).  She said she wanted to open the bank account to deposit her previous savings and any contributions she got from her boyfriend. In the course of this appeal, the appellant has provided additional information that was not mentioned to the magistrate when she sentenced her, relating to the nature of the forged identity card and the circumstances leading to the commission of the offence.

6.  The appellant came to Hong Kong in December 2004 to work as a domestic helper and has been here for more than 10 years.  She explained that her contract was suddenly terminated on 10 December 2010 but remained in Hong Kong out of necessity.  In 2006, her father passed away and as a result the family incurred debts which they paid off by borrowing money from a loan shark.  She claimed that she remained in Hong Kong because the loan shark said he would discharge the debt if she married him and she stayed here to avoid him.  She also claimed that her mother was not well and in need of her support.  However, she told me that she has two older and one younger siblings who are living in Indonesia. 

7.  This appeal is by way of a rehearing but it is appropriate to examine the record of the Magistrate’s Court proceedings to see whether there has been any error by the magistrate in her approach to the sentencing of the appellant or any matter arising from the proceedings or since that would have a bearing when considering the case anew.  The magistrate very carefully considered the case and on the information and material before her imposed the appropriate sentences for the offences charged which were consistent with authority. The summary facts as admitted by the appellant stated that the forged identity card was produced by her to open a bank account. There was no mention that it was used for employment.  It appears that was derived from counsel in mitigation who said that she used the forged identity card to open a bank account with a view to seeking employment.  This was not stated in the admitted facts and was not the case as submitted by the appellant.  I will treat the circumstances of the offence as that contained in the admitted facts.  

8.  Having and using a forged identity card is a serious matter.  An identity card is an important means to identify a Hong Kong citizen for a variety of legitimate purposes, in particular in the context of the strict immigration controls that are in place in Hong Kong. 

9.  In Li Chang Li the court observed that at that time the number of lawful visitors who were convicted of possessing forged identity cards was on the rise and that the problem of illegal workers was serious, thereby causing a wide range of social problems.  The court made it clear that deterrent sentences were necessary in such cases.  The court stated that those persons who are found possessing a forged identity cards or an identity card belonging to another must be taken to have the intention of concealing their identity and seeking unlawful employment in Hong Kong and that it mattered not whether the person was staying in Hong Kong lawfully.  The court’s comments were made in the context of the particular problem then confronting the courts of Mainlanders entering into Hong Kong lawfully as visitors on a two-way permit and obtaining a forged identity card or an identity card belonging to another in order to work illegally in Hong Kong. The court held that in the absence of exceptional circumstances, the sentence upon a guilty plea for possessing a forged identity card or an identity card belonging to another should be 12 months’ imprisonment irrespective of whether the offender was lawfully staying in Hong Kong and where such identity card was produced or used by the offender for concealing his or her identity, seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon a guilty plea should be 15 months’ imprisonment.  The court did explain however that where there are special mitigating factors, the court should exercise its discretion and impose such sentence as is appropriate in the particular circumstances of the case.

10.  In my view the case of a domestic helper and a person in a similar situation may require appropriate consideration of his or her circumstances.  A domestic helper is permitted to enter and stay in Hong Kong under a sponsorship program to work as specified for the sponsor pursuant to an approved contract of employment.  A domestic helper may, and normally does, complete a number of employment contracts and as consequence her employment here becomes for her an established and important source of income and livelihood.  It follows that the longer a domestic helper works in Hong Kong, the greater the chances that she will become reliant on this form of employment and accustomed to the lifestyle of Hong Kong.  To suddenly terminate a domestic helper’s employment contract with relatively short notice to leave Hong Kong, can be a harrowing experience, especially for someone who has been working in Hong Kong for a long time.  It seems to me that this is something that should be borne in mind when dealing with a domestic helper who has fallen foul of the law in circumstances where her livelihood and lifestyle have suddenly been terminated.  This is not to condone in any way the wrongdoing that has been committed but when sentencing it is relevant in understanding the circumstances that a person was in when he or she committed the wrongdoing in question.

11.  The appellant in this case had been working in Hong Kong as a domestic helper for six years when her contract was terminated. The termination date under the contract was 10 December 2010 and she was required to leave Hong Kong by 24 December 2010.  She did not for the reasons that she gave.  In the case of overstaying, there is a degree of flexibility in the sentence to be imposed and for an appropriate measure of compassion in light of mitigating circumstances.  However, in the case of using a forged identity card there is less flexibility for a sentencing court.  In the present case, the appellant had overstayed for over three years and obtained a forged identity card for the purpose of opening a bank account which she claimed she did to deposit her savings.  The obtaining and using of a forged identity card is a serious offence and the appellant must be appropriately punished for it but given her background and circumstances I am of the view that an appropriate sentence of 12 months’ imprisonment should be imposed on Charge 1.  This is no reflection on the way the magistrate dealt with sentence in this case who handled it impeccably but did not have the benefit of the additional information now before me to warrant the approach I have taken. 

12.  I therefore allow the appeal and set aside the sentences and substitute them with a sentence on Charge 1 of 12 months’ imprisonment and like the magistrate I impose a sentence of three months’ imprisonment on Charge 2 which is reduced by one third for her plea of guilty to 2 months’ imprisonment which taking into account the totality principle, I order that 1 month of the sentence of Charge 2 to run consecutively to the sentence on Charge 1, making a sentence of 13 months’ imprisonment.