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CACC220/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 220 OF 2010
(ON APPEAL FROM HCCC 122 OF 2010)
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BETWEEN
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HKSAR |
Respondent |
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and
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FAN KING LAM (樊憬霖) |
Applicant |
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Before : Hon Hartmann and Fok JJA and Tong J in Court
Date of Hearing : 17 August 2011
Date of Judgment : 17 August 2011
Date of Reasons for Judgment : 30 September 2011
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REASONS FOR JUDGMENT
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Background
1. The applicant was charged with two offences, the first being trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and the second being possession of identity cards relating to other persons, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177.
2. The applicant pleaded guilty to both counts before Wright J and admitted the facts of the case. After hearing mitigation, the judge sentenced her to a total term of 6 years and 8 months.
3. The applicant applies for leave to appeal against the sentence. After hearing her submissions, we have dismissed the application. We now give the reasons.
The facts admitted by the applicant
4. The facts admitted by the applicant before the court were these :
“1. On the afternoon of 19th December 2009, the defendant was the subject of a ‘stop and search’ by WPC 7794, Chan Chi-wai, at Ma Tau Kok Road in Kowloon.
2. Upon searching the defendant’s right front trousers pocket WPC 7794 found 2 packets of suspected dangerous drugs. Upon searching her shoulder bag WPC 7794 found a further 20 packets of suspected dangerous drugs, one electronic scale, 198 empty transparent plastic bags and 3 mobile telephones.
3. The said suspected dangerous drugs were later submitted to the Government Chemist who certified them to be dangerous drugs of the nature and quantity named in the first charge.
4. In the defendant’s right rear trouser pocket WPC 7794 found the 2 Hong Kong identity cards named in the second charge. Further investigation certified these 2 identity cards to be genuine, although attempts to locate the card‑holders have so far been unsuccessful.
5. Under caution the defendant said nothing.”
The mitigation
5. In his mitigation, Mr Finny Chan, Counsel representing the applicant, submitted two letters to the court, one was written by the applicant herself, and the other came from the applicant’s family members. Both letters contained statements of the applicant’s remorse and plea for mercy. Mr Chan also said that the value of the drugs was not large.
The sentence
6. In passing sentence, the judge pointed out that the majority of drugs in the charge was “ICE” and ketamine (there were also herbal cannabis and nimetazepam) and he decided to first assess the starting point based on the quantity of “ICE”, which was 25.79 grammes. For this, the judge adopted 7 years and 9 months. He then made an upward adjustment of 9 months, to reflect the amount of the other drugs. For the applicant’s guilty plea, the judge reduced the term by one third, resulting in 5 years and 8 months for the trafficking offence.
7. Regarding the second count, the judge stated that he would impose the usual term for this offence which was 12 months after a plea. The judge further made the order that the two terms were to run consecutively, as they were separate and distinct offences. Thus the aggregate sentence was 6 years and 8 months.
The grounds of appeal
8. The applicant was unrepresented in this application. She stated in the Notice of Application that she found the sentence too heavy and would like to have leave to appeal against sentence.
9. At the hearing, the applicant further submitted a letter to the court stating, inter alia, that :
a The sentencing judge had shown bias towards her and was being unfair in his sentence;
b there were cases where the defendants had received much shorter sentences for the offence of possessing another person’s identity cards;
c she was very remorseful for what she had done. She had now adopted a positive attitude, participating in different kinds of educational programmes to improve herself so that she could start a new life after the imprisonment.
Analysis
10. The complaint about bias on the part of the judge was based on certain remarks made by him in passing sentence. What he said was that the applicant, being a drug dependant, should know about the harmful effect of taking drugs and yet she was prepared to bring such misery to other people by trafficking. The judge stated that “it is in an attempt to minimize that occurrence that the courts imposed stringent sentences for these offences.”
11. In our view, the remarks made were true and appropriate. The judge was simply criticizing the applicant’s conduct and explaining that the courts took a very serious view about drug trafficking conduct. Obviously the judge had in mind the sentencing tariffs which he was about to apply. The approach adopted by the judge in assessing the individual and overall sentence did not reflect any bias or unfairness at all.
12. We could also see nothing wrong about the steps in which the judge had considered the starting point for the drug offence. For the amount of 25.79 grammes of “ICE”, the starting point of 7 years and 9 months was appropriate in view of the authority of AG v Ching Kwok Hung [1991] 2 HKCR 124. The upward adjustment of 9 months, whether based on the combined or the enhancement approach, was clearly justified (see HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Cheng Yat Ming, CACC455/2006).
13. The allegations of biased attitude and unfair sentence were totally unmeritorious.
14. To support her claim that other defendants had received shorter terms, the applicant had cited two examples. They were magistracy cases. The applicant also referred to the judgment of HKSAR v Chan Man Mo [2001] 1 HKLRD 121.
15. It was true that in Chan Man Mo, V. Bokhary J had allowed the appeal and imposed a term of 6 months for a lawful visitor who pleaded guilty to the offence of possessing a forged HK identity card relating to another person. In that case, the focus of the contention was whether there should be any difference in sentence between the defendants who came to Hong Kong unlawfully and those who came in lawfully. V. Bokhary J decided that there should be.
16. This court had the opportunity to consider the related issues in HKSAR v Li Chang Li [2004-2005] HKCLRT 193. Yeung JA, giving judgment of the court, had stated that :
“35. Generally speaking, a document of identity cannot possibly be a plaything or collector’s item. It follows that people who possess forged identity cards or identity cards belonging to others must be doing so for the purpose of concealing their true identity so that they can work illegally in Hong Kong. This is so whether their presence in Hong Kong is lawful or not.
36. Under these circumstances, the degree of culpability of a person who possesses a forged identity card or identity card belonging to another has nothing to do with the lawfulness or otherwise of his presence in Hong Kong. Of course, to remain in Hong Kong unlawfully is an offence in itself, for which the offender will receive an appropriate sentence.
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38. In our view, Chan Man Mo does not adequately address the illegal worker problem and ensuing social problems with which Hong Kong is now confronted. Four months’ imprisonment is not a sufficiently deterrent sentence for those who come to Hong Kong unlawfully but possess forged identity cards or identity cards belonging to others in order to work illegally in Hong Kong. We are also of the view that the sentence for someone who stays in Hong Kong lawfully and possesses a forged identity card or identity card belonging to another in order to seek employment and the sentence for someone who stays in Hong Kong lawfully and actually uses such a card to seek employment should not differ by as much as several folds.
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40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.
41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”
17. We accept, of course, that the present applicant is a Hong Kong permanent resident and not someone staying in Hong Kong by permission. There is no specific tariff for such a case. While it is true that there could be no issue of seeking unlawful employment, we see no ground to say that the 12 months is not applicable in this case. In HKSAR v Lau Kwok Wo, CACC181/2008, in discussing the sentence of 12 months for possessing a forged Hong Kong identity card, Yeung JA pointed out that :
“20. The Applicant is neither an illegal immigrant nor an overstayer in possession of a forged identity card or an identity card relating to another person. As Mr. Wong correctly pointed out, the Applicant was a Hong Kong permanent resident and so he must have his own identity card. By possessing a forged identity card, the Applicant must have his purpose. We do not intend to speculate his purpose. But he was certainly up to no good. In view of these, the Applicant’s offence of possessing a forged identity card is no less serious than an illegal immigrant or an overstayer possessing a forged identity card or an identity card relating to another person for finding a job or extending his stay.”
As a result, the original sentence of 12 months was not disturbed although the overall sentence was reduced on the ground of totality.
18. The two examples mentioned by the applicant were KTCC1036/2011 and KTCC3261/2011. In the former one, the defendant had pleaded guilty to one charge of possession of an identity card relating to another person. She was a Hong Kong resident. According to the admitted facts, the defendant had told the police, upon arrest, that the identity card was given to her by her boyfriend. The card was reported lost by the owner. The magistrate had imposed a term of 4 months. We did not know the reason for the sentence and there was no appeal by either side. Apparently, the magistrate had accepted the defendant’s explanation in mitigation and treated it as an exceptional case.
19. As to the case of KTCC3261/2011, the defendant had pleaded guilty to a number of offences, including 3 possession of identity cards relating to another and 1 using an identity card relating to another. There, the admitted facts showed the defendant had used another’s identity card to pawn a ring. She had also presented another’s card when being stopped by the police as she realized she was wanted for another case. The total sentence imposed was 8 months. This sentence appeared to be inconsistent with the ordinary starting point of 12 months laid down in the Court of Appeal case in Li Chang Li.
20. In the present case, although the cards were not forged and the defendant was a Hong Kong permanent resident, we are of the view that, given the circumstances, 12 months after plea is neither wrong in principle nor manifestly excessive, particularly when the applicant was in possession of two identity cards relating to another.
21. Equally, the order of consecutive term is appropriate in the circumstance. The point about remorse and a genuine desire to change for the better would not justify any further reduction in the sentence.
Conclusion
22. We would dismiss the application accordingly.
(M. Hartmann)
Justice of Appeal |
( JosephFok)
Justice of Appeal |
(Louis Tong)
Judge of the Court of First Instance |
Mr Ira Lui, SPP of the Department of Justice, for the Respondent
The Applicant in person
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