HKSAR v. CHEN WEIMIN

HCMA 724/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 724 OF 2004

(ON APPEAL FROM KCCC 7819/2004)

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J U D G M E N T

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1. The Appellant appeals sentences of 20 months imprisonment on a charge of using a forged identity card and 4 months imprisonment on a charge of breach of condition of stay. These sentences were imposed after a reduction of one third from the starting points for pleas of guilty. They were ordered to be served consecutively, resulting in an aggregate sentence of 24 months imprisonment.

2. The Appellant appeals the sentences on the basis that they are too severe.

3. The Appellant had purchased the forged identity card before coming to Hong Kong: he used it to secure employment, giving rise to Charge 1. He took up that employment, giving rise to Charge 2.

4. The Magistrate referred to the frequently quoted decision in R v Shamin Nawaz [1994] 1HKCLR 195 in which it is indicated that a sentence of 15 months imprisonment, after a plea of guilty, for use of a forged identity card to obtain employment cannot be said to be excessive. That suggests a starting point of 22 months after trial. As we shall see, the Appellant has repeatedly used or possessed forged Hong Kong identity cards during visits to Hong Kong. It would be na?ve to believe that the Appellant had this identity card for any purpose other than obtaining employment to further his stay, albeit that he may have been here lawfully at the time of use.

5. The Magistrate set out the Appellant's criminal record which shows two convictions for unlawful remaining, four for breach of condition of stay, one for using an identity card relating to another person and two for possession of forged identity cards. He decided that a starting point of 30 months imprisonment was justified in this matter, which was then reduced.

6. That starting point exceeds the jurisdictional limit imposed on Magistrates by sec. 92 of the Magistrates Ordinance, Cap. 227. It is well settled, however, that a Magistrate may take a starting point in excess of that limit for the purpose of calculating sentence but a sentence in excess of it may not be imposed. It is also well settled that an enhanced sentence may be imposed where an offender repeatedly commits the same or similar offences [HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830]

7. In his Statement of Findings the Magistrate drew attention to the provisions of sec. 7A(1)(b) of the Registration of Persons Ordinance, Cap., 177, the section under which Charge 1 is brought. That section provides a maximum period of imprisonment of 2 years where the offence is tried summarily, as here. Thus the starting point taken exceeded not just the general jurisdictional limit of a Magistrate but also the maximum sentence which the Magistrate could have imposed. There is no authority as to whether that is a permissible course to follow.

8. The Appellant is unrepresented in these proceedings, having been refused Legal Aid. This obviously is a matter of importance generally. It would not be appropriate to make any decision on the correctness of the Magistrate's approach absent full argument.

9. The prosecution has indicated that it does not seek to uphold the starting point on Charge 1. In the circumstances I shall assume, without deciding, that the maximum starting point which the Magistrate would have been entitled to adopt was 2 years imprisonment.

10. His reasons for adopting the enhanced starting point were compelling. This is a matter where he would have been fully justified in adopting a starting point of 24 months, reducing it to 16 months for the plea.

11. Insofar as Charge 2 is concerned, a starting point of three months imprisonment for a first offender is frequently taken as the appropriate starting point. Again for compelling reasons, the Magistrate took a starting point of 6 months imprisonment which he reduced to 4 months for the plea: he correctly ordered that the sentences be served consecutively to one another. That sentence, and order, is correct.

12. The Appellant has set out in a letter his personal and family circumstances which he contends justify a revision of the sentence. None of the facts set out in that letter, even were they true, was unknown to the Appellant before this, his seventh entry to Hong Kong during which he had offended.

13. The appeal succeeds to the extent that the sentence on Charge 1 is set aside and a period of 16 months imprisonment substituted. The sentence on Charge 2 is confirmed as is the order directing that that sentence be served consecutively to that on Charge 1. The aggregate sentence is thus 20 months imprisonment.