HKSAR v. NG YAT WA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1225 OF 1998

(ON APPEAL FROM NKC 7136 OF 1998)

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J U D G M E N T

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1. The Appellant pleaded guilty to:-

(1) possession of an identity card relating to another person and

(2) remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong

before a Magistrate in North Kowloon Magistracy and was sentenced in respect of the 1st charge to 9 months imprisonment and in respect of the 2nd charge to 15 months imprisonment. He ordered that in respect of the 1st charge 6 months imprisonment term to run concurrently with the sentence in respect of the 2nd charge making a total of 18 months imprisonment. He now appeals against sentence.

FACTS

2. Police party raided the rooftop of 291 Castle Peak Road on 16th October 1998 and asked the Appellant for proof of identity. The Appellant whereupon produced a Hong Kong Identity Card. Upon enquiries police found the photo on the identity card was not that of the Appellant. The Appellant admitted he was an illegal immigrant and had sneaked into Hong Kong from Shenzhen in February 1997.

3. In relation to these two offences in R. v. So Man King [1989] 1 HKLR 142, Cons, Acting CJ, as he then was, was of the opinion that apart from any aggravating feature, there is little distinction in possession of forged identity card or using identity card of another person in the ordinary run of the mill cases. At p.145 he said:

"... the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, or other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit."

4. Then in R. v. Or Chun Ping [1992] 1 HKCLR 177, Barnes J., as he then was, at p.179 said:

"The authorities to which I have been referred make it clear that if the use of the identity card is merely for the purpose of representing that the holder has the right to reside here, then the appropriate sentence is 15 months imprisonment to be served concurrently with a similar term for the illegal immigrant offence. In this case I do not think that the further use of the identity card to open an account amounted to obtaining the type of benefit which the Court of Appeal had in mind as requiring an upward adjustment of the sentence."

5. Although part of the judgment of Barnes J. was overruled by Cons, Acting C.J. in R. v. Chan Wun Shing, he approved the other part of the judgment and said:

"The authorities to which I have referred make it clear that if the use of the identity card is merely for the purpose of representing that the holder has the right to reside here, then the appropriate sentence is 15 months imprisonment to be served concurrently with a similar term for the illegal immigrant offence."

6. The facts here disclosed that the use of the invalid identity card was merely for the purpose of representing that the Appellant had the right to reside here.

7. The prosecution did not oppose this appeal. I, therefore, followed the decisions cited above and allowed the appeal and order the sentences on the 1st and 2nd charges to run concurrently.