HKSAR v. GUO Cheng-xiang

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 649 OF 1997

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J U D G M E N T

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1. The appellant pleaded guilty to one count of possession of an I.D. card relating to another person contrary to Section 7A (1A) of the Registration of Persons Ordinance, Cap. 177. He was sentenced to 15 months' imprisonment, but the learned magistrate gave a discount of 3 months for his plea. He is now serving a 12-month term.

2. It was submitted before this court by Mr WONG that the learned magistrate had failed to take into consideration that, at the time of his arrest, his right of remaining in Hong Kong had not expired. It was argued that this takes the criminality out of the offences, as opposed to persons who had chosen to remain in Hong Kong as an overstayer.

3. I was referred to the case of R v Shamim Nawaz [1994] 1 HKCLR 195 in which Barnett J, in another division of this court, observed that in assessing the appropriate sentence:

"The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card."

4. Barnett J went on to observe in the same case that:

"The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive."

5. As indicated earlier, the appellant's right to remain in Hong Kong on the date of his arrest had not expired. Further, there is no material before the learned magistrate for him to conclude that his purpose of being at Chep Lap Kok on the day of his arrest was to seek unlawful employment. Although the evidence points to that direction, nevertheless, in a proper case, the learned magistrate should have made enquiries to support his starting point of 15 months.

6. In the present case, I come to the conclusion that the starting point of 15 months is manifestly excessive. A starting point of nine months is appropriate. With the plea of guilty, he should be given a discount of one-third and thereby arriving at a net prison term of six months.

7. The original sentence is therefore set aside and a prison term of six months is substituted.