HKSAR v. HO KIN SHAN

HCMA 452/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 452 OF 2002

(ON APPEAL FROM KTCC 2344/2002)

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J U D G M E N T

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1. The Appellant was convicted of one count of possession of a forged identity card after he had pleaded guilty. He was sentenced 12 months' imprisonment. He now appeals against that sentence.

2. The fact was very simply that on the morning of the 29th of March 2002, the Appellant was intercepted by a police officer and he produced to the police officer an identity card. Upon the police officer's further questioning, the Appellant admitted that he had bought that identity card in Shenzhen for RMB500 and he had intended to use it to seek employment in Hong Kong.

3. The Appellant came to Hong Kong on a two-way permit and was granted a permission to stay in Hong Kong until the 7 April 2002 as a visitor. Under the terms of his permission to stay Hong Kong, he was not allowed to seek any employment.

4. The learned Magistrate after considering the cases, decided that he should follow the sentence which was set down by Barnett J in The Queen v. Shamim Nawaz [1994] 1 HKCLR 195. Mrs Yew who represents the Appellant had submitted a very full skeleton argument, which this Court is indebted to her for, setting out the reasons why the learned Magistrate was in error in following Shamim Nawaz when considering the sentence in this case.

5. I have to agree with her because Shamim Nawaz dealt with cases where the defendants were overstayers or illegal immigrants. This case falls squarely on its facts with the case of Chan Man Mo [2001] 1 HKLRD 121. In that case, Mdm Justice Bokhary, after considering all the cases dealing with offences of this nature, laid down sentencing guidelines in relation to a defendant who was arrested with a forged identity card but was legally in Hong Kong at the time of his arrest. In case of such a defendant, V Bokhary J suggested the level of sentence should be 4 months' imprisonment after a guilty plea. If he had produced such an identity card to a police officer, an extra 2 months should be added to his sentence making a total of 6 months' imprisonment.

6. Mr Ho who represents the Respondent, has also very properly and wisely considered that the appropriate sentence should be one of 6 months' imprisonment.

7. In view of what I have said above, I, therefore, allow the appeal against sentence. The sentence of 12 months' imprisonment is set aside and the Appellant is sentenced to 6 months' imprisonment.