HKSAR v. HIP MING CHEONG

HCMA 500/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 500 OF 2002

(ON APPEAL FROM KTCC 2308/2002)

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J U D G M E N T

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1. The Appellant had pleaded guilty to one count of possession of an identity card relating to another person, and one count of breach of condition of stay. He was sentenced 12 months' imprisonment on the 1st count and one month on the 2nd count. Both terms of imprisonment to be served concurrently. The Appellant now appeals against the sentence on the 1st count only.

2. The facts of the case show that on 26 March 2002, the Appellant was seen working at a road construction site by a patrolling police officer. Upon being asked to produce proof of identity, the Appellant produced a Hong Kong Identity Card in the name of Wong Yuet-sun to the Police Officer for inspection. The police officer then questioned the Appellant, who admitted that the identity card was not his, and that he was a two-way permit holder and had arrived in Hong Kong on the 20th of February 2002, and was allowed to stay until the 20th of May 2002. The Appellant was arrested and under caution, he claimed that he had picked up the identity card a few days prior to his arrest, and that he was employed to work at that road construction site for HK$300 a day which had breached his condition of stay in Hong Kong.

3. The original identity card holder was located by the police and he confirmed that he had lost his identity card in September 2000.

4. The learned Magistrate when assessing sentence, also conducted a Newton hearing. The Appellant gave evidence saying that he did not produce the identity card to the police officer as the identity card was in his trouser pocket, and that it was the police officer who found the identity card upon searching him. He said he had picked up the identity card on 24 March and had intended to hand it to the police, but he had not had time to do so.

5. The learned Magistrate, after carefully considering the evidence, accepted the evidence of the police officer and rejected the Appellant's evidence, because she found the Appellant to have been a dishonest witness. The learned Magistrate in considering sentence, took into account the guideline as laid down in R v Shamim Nawaz and considered that a 15 months' imprisonment on the 1st count was not excessive. But after considering the background of the Appellant, decided that a 12 months' sentence was appropriate in this case.

6. The case of Shamim Nawaz, as I have said in a previous case this morning, deals mainly with overstayers and those who came to Hong Kong illegally. This case falls squarely in the guideline laid down in the HKSAR v Chan Man Mo [2001] 1 HKLRD 121, and I agree with counsel that the learned Magistrate should have followed the guidelines in Chan Man Mo.

7. It is appropriate now to look at the case of Chan Man Mo where Madam Justice Bokhary considered the case of Shamim Nawaz, and at the end of the day said that when an offender's presence in Hong Kong was legal at the time of the offence, and he was found in possession of somebody else's identity card, it would merit a sentence of 3 months' imprisonment upon a plea of guilty. Now if this same person intended to use a forged or somebody else's identity card to seek employment, it would be an aggravating factor and the appropriate sentence upon the plea of guilty would be 4 months' imprisonment.

8. Madam Justice Bokhary also considered another scenario where a person actually use a forged or somebody else's identity card to seek employment, then a sentence of about a year would be appropriate if the person was in Hong Kong legally at the time. She also considered that it would be an aggravating factor if the offender, whether legally or illegally here, actually produced the forged or somebody else's identity card to a police officer conducting an identity card check, and in those circumstances, the appropriate sentence should be increased by 2 months. So it is very clear that a person, should he have used somebody else's identity card intending to seek employment in Hong Kong, would merit a sentence of 4 months' imprisonment.

9. The learned Magistrate in rejecting the Appellant's evidence, accepted first of all that the Appellant was in Hong Kong on a two-way permit and at the time of the offence, he was legally in Hong Kong. She accepted that when the police officer approached the Appellant for document of identity, the Appellant produced to him the identity card belonging to somebody else. Also the learned Magistrate was entitled to consider that the Appellant had arrived in Hong Kong on the 20th of February. He was found on the 26th of March working at this construction site, and he had admitted freely to the police officer that he was employed on the site for HK$300 a day, and he knew that he was not allowed to work in Hong Kong as part of his condition of stay in Hong Kong.

10. Having considered all these, the learned Magistrate was thus entitled to reach the irresistible inference that there was a link between the Appellant's possession of the said identity card and his employment in Hong Kong. Therefore, she was entitled to consider, at the end of the day, that his possession of this identity card was with the intention of seeking employment in Hong Kong. So I agree with Mr Ho for the Respondent that the learned Magistrate had ample evidence before her from which she could draw the irresistible inference that the Appellant was in possession of this identity card in order to facilitate his employment here. So I accept, therefore, that the proper sentence in this case on the 1st count should be 4 months' imprisonment plus 2 months because the Appellant had produced the identity card to the Police Officer. On that basis, the appeal is allowed on Charge 1. The sentence is set aside and the Appellant is sentenced to 6 months' imprisonment on the 1st charge.

11. As for the Respondent's submission that although the sentence on the 2nd charge has not been appealed by the Appellant, I could look at the overall sentence and consider whether it is appropriate or not. The fact is there is no appeal on the 2nd charge, nor has there been an application for review from the Respondent for me to deal with the sentence on the 2nd charge. I, therefore, do not consider that I have jurisdiction to consider the sentence on the 2nd charge nor should I interfere with the Magistrate's decision that the sentence on the 2nd charge should be concurrent and not consecutive. In these circumstances, I will not interfere with the sentence. So the 6 months' imprisonment will be concurrent to the 1 month which was imposed by the learned Magistrate for the 2nd charge.