CACV

HCMA776/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 776 OF 2004

(ON APPEAL FROM KCCC 8215 OF 2004)

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J U D G M E N T

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Background

1. On 17 June 2004, the appellant was convicted on his plea of guilty by Mr Mackintosh at Kowloon City Magistrates’ Court of an offence of using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177.  The appellant was sentenced to 12 months’ imprisonment.

The facts

2. On the morning of 15 June 2004, the appellant used a forged Hong Kong identity card bearing his photograph to gain entrance to the Sorrento Tower II.  He produced it to a security guard.  However, the security guard was suspicious of the authenticity of the card and a report was made to the police.  A little while later, police officers confronted the appellant at Room C on the 26/F of that building.  At their request, he presented to them the same forged Hong Kong identity card. 

3. Under caution, the appellant admitted that he had gained entry to Hong Kong as a “two-way” permit holder and that he had bought the Hong Kong identity card bearing his photograph in Shenzhen for RMB200.  He intended to use it to obtain employment in Hong Kong. 

Reasons for sentence

4. The learned magistrate noted that the appellant was a man of 28 years of age with no previous criminal convictions in Hong Kong.  Of the circumstances in which the appellant came to be arrested, the magistrate said :

“… He came here lawfully on a two-way permit and thereafter went to Sorrento and produced the card to a security guard to gain entry.  Judging by the number of similar cases brought before the court, the Sorrento development is regularly used by unlawful workers and the security guards there are vigilant in detecting forged cards.  This defendant was admitted to the site and was later arrested on the 26^th floor of one of the towers.  He admitted that he had the card to obtain employment in Hong Kong.”

5. Having considered the judgment of Barnett J in HKSAR v. Shamim Nawaz [1994] 1 HKCLR 195 and the judgment of Bokhary J in HKSAR v. Chan Man Mo [2001] 1 HKLRD 121, the learned magistrate stated that he took a starting point of 18 months’ imprisonment to which he applied a discount of 6 months, reducing the sentence he imposed to 12 months’ imprisonment.  He took that discount in light of “his very early plea and all his personal circumstances”. 

6. In his consideration of the two authorities, the magistrate reached the following conclusions :

“In Chan Man Mo, it was said that if an offender had actually used a forged card in seeking employment, a sentence of about one year would be appropriate (presumably on a plea of guilty).

In Shamim Nawaz, Barnett J said: ‘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’.”

7. Applying the law to the facts, he stated :

“Here the defendant admitted that he had the card to obtain unlawful employment.  Indeed that could be the only possible inference from his having obtained it in the first place.  He was liable to a sentence of up to 15 months’ imprisonment.”

Grounds of appeal against sentence

8. The appellant’s grounds of appeal against sentence are simply that the “sentence was too severe”.  In a letter to the court he asked for an early release on humanitarian grounds, namely, dependants, his mother, an eight-old son and a pregnant wife.  

9. With respect to the magistrate, it seems to me that he was in error to conclude from the judgment in HKSAR v. Shamim Nawaz that the appellant was “liable to a sentence of up to 15 months’ imprisonment, after a plea of guilty”.  In that case, the appellant was an overstayer by eight months, possessed of another person’s identity card.  Barnett J’s statements in respect of that sentence were in respect of an “overstayer” in contrast to an “illegal immigrant”.  He made reference specifically to a decision of the Court of Appeal in respect of an illegal immigrant, R. v. Chan Shau Kin, CACC934/1981, in which case sentences of 15 months’ imprisonment imposed upon illegal immigrants in possession of forged identity cards were upheld.  Barnett J said that no distinction was to be drawn between them, that is, overstayers and illegal immigrants, for sentencing in respect of their possession of impugned identity cards :

“… 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.  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.  If, however, the answer is no, and no link is established between the offender’s status in Hong Kong and the identity card, the offence in relation to the identity card falls to be treated as an unconnected offence.”

10. By contrast, in this case, the appellant was not an illegal immigrant or an overstayer.  He was in Hong Kong legally as a two-way permit holder.  For reasons best known to the prosecution no information whatsoever was supplied to the court as to when the appellant arrived in Hong Kong or how long he was permitted to remain.

11. In HKSAR v. Chan Man Mo [2001] 1 HKLRD 121, Bokhary J noted the significance of the distinction between someone here lawfully and someone here unlawfully.  She observed that in the judgments of Leong J (as he then was) in R. v. Ghazanfar Iqbal, MA654/1993 and of Hartmann J in HKSAR v. Chan Tsan Fai, MA312/1998, where both appellants were in Hong Kong legally as two-way permit holders but were possessed of the identity cards of others, the court indicated that the appropriate sentence was three months’ imprisonment.

12. However, she went on to note that in HKSAR v. Lam Kai Kwong, HCMA882/1998 (unreported) the appellant who was lawfully in Hong Kong as a two-way permit holder and who was possessed of a forged identity card admitted that he bought it in the Mainland and that he intended to use it to obtain employment.  However, he had not in fact used it for that purpose.  Pang J reduced the sentence imposed on the appellant upon his plea of guilty to a term of four months’ imprisonment.

13. Bokhary J noted that in the case before her where the appellant had pleaded guilty, it was admitted that he had produced a forged identity card to a police officer when stopped at a roadblock.  It was admitted also that he possessed that for the purpose of finding a job in Hong Kong.  In those circumstances, Bokhary J determined the appropriate sentence after plea of guilty to be one of six months’ imprisonment.  In her useful review of the principles and sentence levels imposed in other cases as reflected in the judgments of the Court of First Instance, Bokhary J went on to state, in the context where the defendant was not an illegal immigrant or an overstayer :

“If he had actually used a forged or somebody else’s identity card in seeking employment, then a sentence of about a year’s imprisonment would be appropriate even though his presence in Hong Kong was legal at the time of his offence because he was neither an illegal immigrant nor an overstayer.”

It is not apparent on what basis or authority that assertion was made.  Counsel for the respondent was unable to assist the court in response to that enquiry.

14. In HKSAR v. Chen Han Wei, HCMA148/2003 (unreported), Day DJ identified a further refinement of the variety of factual situations which may arise, namely :

(i)                a two-way permit holder lawfully in Hong Kong;

(ii)              possessed of a forged identity card;

(iii)            intending to use it to obtain employment in Hong Kong; and

(iv)            intending, in consequence, to prolong his stay beyond the period in which he was permitted to remain lawfully in Hong Kong.

In that case, the magistrate at first instance had drawn that latter inference from the information provided to the court in the brief facts, namely, that he was only permitted to be in Hong Kong lawfully for two weeks and that he was possessed to have a forged identity card with the intention to use it to obtain employment within 10 days of the end of that period.  Day DJ quashed the sentence of 10 months’ imprisonment imposed upon the appellant in those circumstances.  The appellant having pleaded guilty and imposed the sentence of eight months’ imprisonment. 

15. In HKSAR v. Xu Honde, MA562/2003 (unreported), Jackson J dismissed an appeal from an appellant who was appealing a sentence of eight months’ imprisonment in similar circumstances.  The magistrate having stated that he was following the judgment in Chen Han Wei.  Perhaps, these two cases illustrate the importance of the prosecution informing the courts of all the facts relevant to the presence of the defendant with whom the court is dealing at the time that he is found possessed of his forged identity card.

16. At issue in this case before this court is into which factual category does the appellant fall.  Clearly, he was lawfully in Hong Kong, possessed of a forged identity card with the intention to use it to obtain employment.  Further, he had used the identity card, he had done that to gain entrance to Sorrento Tower.  Arguably, he used it again when he, when confronted by the police, produced it to them at their request, but, did he use it to try to gain employment in Hong Kong?

17. One difficulty in this case is the paucity of information disclosed in the brief facts.  The bare statement made in the brief facts are that the appellant gained access to Sorrento Tower II and was located by police at Room C of the 26/F of that tower.  The circumstances and condition of Sorrento Tower II were not described, nor those that obtained in Room C on 26/F.  Nothing whatsoever was said about the circumstances of the man found in the company of the appellant at Room C on 26/F. 

18. Clearly, the learned magistrate, quite properly, has taken into account some degree of judicial knowledge of that place, close by as it is to Kowloon City Magistrates’ Court.  He described it as “a development” and “a site”.  But what kind of development?  The prosecution informed this court, at the court’s request, that at the time of the offence “it was a  completed residential block, not wholly occupied”.  Of the security guard, to whom the appellant presented his identity card, they said he was no more than a guard that one would find in any completed building. 

19. It is to be noted that the learned magistrate made no specific finding that the appellant had used the forged identity card to seek to obtain employment.  Certainly, the appellant made no admission of that specific fact, at least one advanced to the court.  He did admit he bought the identity card intending to use it to find a job in Hong Kong.

20. Clearly, the magistrate and this court are both placed in difficulties if the prosecution do not articulate accurately and specifically the factual basis of their case in the brief facts.  In this case that has not been done. 

Conclusion

21. In my judgment, the appropriate findings as to the factual basis for severance are that the appellant :

(i)                was lawfully in Hong Kong;

(ii)              was unlawfully possessed of a forged identity card which he intended to use to obtain a job in Hong Kong; and

(iii)            had used the identity card in presenting it to the security guard to obtain entrance to Sorrento Tower II.

22. However, in light of the important gaps in the information in the brief facts, it is not open for the court to find that he had used the identity card to seek to obtain a job in Hong Kong.  In those circumstances, in light of the various authorities reviewed earlier, the appropriate sentence is one of six months’ imprisonment.

Order

23. I quash the sentence of 12 months’ imprisonment imposed by the magistrate, and in substitution impose a sentence of six months’ imprisonment.  To that extent, this appeal against sentence is allowed.