HKSAR v. LAU SAU HUNG

HCMA134/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 134 OF 2009

(ON APPEAL FROM ESCC 152 OF 2009)

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J U D G M E N T

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1.  The Appellant in this case pleaded guilty to the possession of a forged identity card relating to another person, and to unlawfully remaining in Hong Kong.

2.  The Magistrate took a starting point of 15 months for the first offence and reduced it by a third for the plea of guilty, resulting in a sentence of 10 months’ imprisonment.  He imposed 15 months’ imprisonment for unlawfully remaining, and he made 6 months of the first sentence consecutive to the second, creating a total of 21 months’ imprisonment.

3.  It is clear that the forged identity card had been used to pass off the Appellant as a Hong Konger and aid her stay in Hong Kong.  She had been here since June of 2008, and she was arrested in January 2009.

4.  As everybody knows, it is the case of HKSAR v Li Chang Li (2005) 1 HKLRD 864 that deals with the right sentence for such offences.  It says it should be 15 months’ imprisonment on a plea of guilty.

5.  The Magistrate either did not read that, or chose to ignore it if he did, because he reduced the 15 months by a third for the plea of guilty.  He was wrong to do that, in my judgment, and I shall alter that 10 months to 15 months.

6.  He was then also wrong, in my view, to order that these sentences be partially consecutive to each other.  It ignores completely the very well-known case of So Man King.  Even if he had only looked at the headnote of that case, he would have seen these words:

“No significant legal or moral distinction was to be made between the offence of remaining in Hong Kong unlawfully and the related offences of unlawful possession and use of identity cards.  The substantial element in sentencing for all three offences was unlawful presence in Hong Kong.”

7.  On the face of it, the two sentences should have been 15 months on each, concurrently.

8.  The Magistrate, in overlapping the cases, sought to follow a case called HKSAR v Tong Fuk Sing (1993) 3 HKC 142, which was a case where an illegal immigrant burglar was sentenced to 15 months’ imprisonment for his Immigration offence and sentenced to another sentence of imprisonment for his burglary here, and the Court of Appeal said they should be consecutive.  That case is about situations where illegal immigrants commit other crimes other than being an illegal immigrant and the things associated with it, like having a false identity card or a forged identity card.

9.  In So Man King the tariff for being an illegal immigrant and for possessing forged identity cards was consciously put up to 15 months.  That is the sentence the Court of Appeal then envisaged for people in this situation.  It was not envisaged that sentences of 21 months would be imposed in the way this Magistrate imposed it.

10.  The Appellant has been unrepresented, and in her homemade grounds of appeal she says that she came to Hong Kong, on the strength of a permit, properly; she did not sneak into Hong Kong.

11.  She entered an unequivocal plea of guilty.  She had the benefit of the duty lawyer.  She agreed the facts below which related the admission to sneaking in.  There is no realistic prospect of her being able to reverse her plea.  It was quite clearly unequivocal.

12.  However, today she produces to me a travel permit from the Mainland which, to my obviously non-expert eye, though, looks to be a good one, and she tells me that she lied to the police in saying she had sneaked in because she understood that if she told that lie, she would be sent straight back.  The advice was half true, because if it had been only that, she would have been sent back.  It was the possession of the forged identity card which triggered the prosecution.  This is a common enough situation.

13.  As regards the possession of the forged identity card, what the Appellant said in her grounds of appeal was that “I only violated the law because of the false identity card.”  Today she has attempted to try to say to me that she did not appreciate that it was a forged one. I regret to say it was a hopeless submission that failed.  No one could believe it was a real one, bought in the circumstances she described, it being of a quality that demonstrates obvious forgery.

14.  It is thus that there is no mitigation to alter the 15 months sentence on the 1st charge of the possession of the forged identity card, and that is the sentence I pass upon her today.

15.  Because I believe in fact she was an overstayer and told a lie about being an illegal immigrant, I will, for the sentence of 15 months on the remaining charge, impose a nominal 1 day’s imprisonment there.  That will have in fact no practical effect on this lady’s life, save for the fact that if anyone should ever have to consider her record in the future, someone with a knowing eye may be able to work out what has happened here today, and appreciate her case was not that of being an ordinary illegal immigrant.

Representations: