HKSAR v. MUHAMMAD, HAFEEZ UR REHMAN

CACC 180/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 180 OF 1999

(ON APPEAL FROM DCCC 1333 OF 1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant who was D1 at the trial below was convicted after a trial in the District Court before Deputy Judge Geiser of using an identity card relating to another person, contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap. 177. He was sentenced to 14 months imprisonment and now seeks leave to appeal against his sentence.

2. The police conducted a raid at the offices of Far East Employment Engineering & Trading Company at Yuen Long on 22nd September 1998. During the course of the raid one of the police officers saw one of the employees of the company leaving the premises and holding a bag. This man who was D2 at the trial below handed the bag to the applicant who was waiting nearby. He was brought back to the office and was searched. The identity card the subject matter of the charge being identity card no. P478342(9) which was in the name of Iqbal Muhammad Saeed was found on the applicant's person.

3. There was also evidence given by an employee of Gammon that two foreign men had attended at their construction site seeking employment and that one of the men had produced identity card no. P478342(9) as evidence to support his claim that he was a Hong Kong resident. The Judge made a finding that the applicant was the man who had produced to him the identity card.

4. In fact the applicant who is not a resident of Hong Kong was entitled to stay here by virtue of a 3-month visa which was issued to him by the Director of Immigration. He was certainly not entitled to work in Hong Kong.

5. When passing the sentence the Judge said:

"Dealing with the 1st defendant first of all.

He is a man of clear record and who, I am told and accept, came to Hong Kong quite legitimately on a three month visa which was due to expire on 10 December 1998. It has been suggested to me therefore by Mr Stevenson on his behalf that the 1st defendant is not in the same category as those illegal immigrants who come to Hong Kong and are caught in possession of somebody else's ID card. Whilst it is right to say that the defendant at the time he committed this offence was legally in Hong Kong, he was certainly not entitled to use somebody else's identity card in an attempt to obtain employment here because as such he was indeed masquerading as a person who is entitled to permanently remain in Hong Kong.

As such, it seems to me that he is caught by the tariff in terms of sentence, the proper starting point in sentencing being after trial one of 18 months' imprisonment. I do indeed adopt this as my starting point but am prepared to discount this sentence by 4 months to take account of the defendant's clear record and family circumstances that have been put before me by way of mitigation.

Accordingly, the 1st defendant is sentenced to a term of 14 months' imprisonment on the 5th charge."

6. There is one perfected ground of appeal. The complaint which is made is that the starting point of 18 months imprisonment was manifestly excessive. The case cited by Mr. Johnny Chan, counsel for the applicant in support of this proposition HKSAR v. Farid Khan unrep. being HCMA No. 1126/97 is of little assistance in this matter. Using someone else's identity card is a different offence to being in possession of a forged identity card. It is also arguably more serious. It has to be added that Beeson, J. in Farid Khan may have been in error in reducing the sentence she imposed from 12 months to 8 months.

7. The legislation has laid down fairly severe maximum penalties for this offence. 10 years maximum for an indictable offence and 2 years if dealt with summarily.

8. We do not think that the sentence which was imposed was in any way excessive. Indeed had the sentence been longer it could not have been the subject of criticism. This application is dismissed.