HKSAR v. LOKU HENNADIGE MAHESWARI

HCMA596/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.596 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on her own plea of two charges, one of possession of an identity card relating to another person and a second charge of breach of a condition of stay. On the first charge, she was sentenced to 15 months' imprisonment, and on the second charge, three months' imprisonment, to be served concurrently. The sentences were passed on 25th April 1998 by Miss Susanna D'Almada Remedios sitting in Tsuen Wan Magistracy. The Appellant now appeals against sentence.

2. Mr Newman Wong, who appears for her, has argued that the sentence is excessive because it failed to take into account the fact that the Appellant is from Sri Lanka as opposed to China or Vietnam.

3. The facts of the case are that on the early morning of 23rd April 1998, the Appellant was travelling on board a public light bus which was going along Martin Road in Yuen Long. The public light bus was stopped by the police at a road block, and the Appellant was asked to produce her Hong Kong identity card for a check. She produced a Hong Kong identity card in the name of another person, and the name of that other person appears to be from the same ethnic group as that of the Appellant. As the Appellant's appearance did not match with the photograph on the identity card, the police officer concerned caused a check to be made of the identity card and was, after a while, informed that the identity card in question was invalid.

4. Upon questioning, the Appellant admitted that in March 1998, about a month prior to her being stopped by the police, she had picked up the exhibit in the Tuen Mun area. Her Sri Lankan passport that she had used to enter Hong Kong had expired on 27th September 1997. When she entered Hong Kong, she was permitted to stay from 13th September 1997 to 27th September 1997. The identity card in question was later confirmed to have been reported lost by its owner on 24th March 1998. In the learned Magistrate's Reasons for Sentence, she said that she had regard to the case of The Queen v. Shamim Nawaz [1994] 1 HKCLR 195 and the learned Magistrate mentioned that because Barnett J. in Nawaz's case had said that the Court should ask itself whether the offender has the identity card to obtain employment, or otherwise to further his remaining in Hong Kong, and if the answer to that question is "yes", then the sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive. Barnett J. had also said that it matters not whether the offender is an illegal immigrant or an overstayer.

5. The learned Magistrate said that she was satisfied that the Appellant had produced the card to further her stay in Hong Kong and/or to obtain employment here. She followed the guideline in Nawaz's case and imposed a sentence of 15 months' imprisonment on the first charge. In respect of the second charge, she said that the Defendant had overstayed in Hong Kong for some seven months and she imposed a sentence of three months' imprisonment.

6. It is not clear from the evidence in the case what the Appellant had done after her arrival in Hong Kong in terms of employment in Hong Kong. When she pleaded guilty before the learned Magistrate, her Counsel had said in mitigation that the Appellant came to Hong Kong to look for work to supplement the household income, and that she had come to Hong Kong hoping to help out her family in Sri Lanka. In relation to the card concerned, she had found it. There is no mention anywhere of whether the Appellant had actually worked in Hong Kong after her arrival here. Mr Newman Wong said that she might have had one or two short casual jobs in Hong Kong, but she did not really have any long term employment because she did not have a Hong Kong identity card which enabled her to work in Hong Kong.

7. The cases relied upon by Mr Wong were cases which he quoted to try and make the point that inasmuch as this Appellant is not an illegal immigrant from China, the guideline tariff of 15 months' imprisonment set by the Court of Appeal in The Queen v. So Man King [1989] 1 HKLR 142 should not be applicable. The cases quoted by Mr Wong start with The Queen v. Bashir Ahmed, Magistracy Appeal No. 522 of 1993, then there was the case of The Queen v. Shahid Nadeem and Butt, Magistracy Appeal No. 359 of 1994. The third case that Mr Wong mentioned is the case of The Queen v. Shaikh Muhammad Quazzafi, Magistracy Appeal No. 655 of 1994. In that last case before Bewley J., in August 1994, the Appellant had pleaded guilty to using an unlawfully obtained travel document, and using a Hong Kong identity card relating to another person and a breach of condition of stay and was sentenced to 15 months' imprisonment on the first two charges and two months on the third charge all concurrent. Bewley J. said:

" Applying the guidelines relating to the use of another persons' identity card, the Magistrate said he saw no reason why the Appellant who is a Pakistani citizen should not be treated in the same way as any person from the Chinese mainland.

He appears to have overlooked The Queen v. Bashir Ahmed, MA522/93, in which Leonard J. took the view that a sentence of nine months' imprisonment was appropriate for a Pakistani overstayer with no previous convictions in Hong Kong, who had pleaded guilty to using the identity card of another person of the same ethnic origin as himself by producing it to the police. In The Queen v. Nadeem and Butt, MA359/94, Keith J. approved the Magistrate's starting point of 12 months in the case of a Pakistani overstayer using an identity card relating to another person contravening a condition of stay and failing to produce proof of identity."

In the case before Bewley J., he allowed the appeal and reduced the sentences on the first two charges to nine months.

8. I should mention that Bashir Ahmed, MA522/93, was decided in August 1993 whereas Nadeem and Butt, MA359/94, was decided in July 1994, and the case that I just mentioned before Bewley J. was in August 1994. These last two cases, therefore, were decided after The Queen v. Shamim Nawaz [1994] 1 HKCLR 195 which was decided by Barnett J. in March 1994. The problem, as I see it, is that some Magistrates may follow the line of cases which decided that a person committing identity card offences, and who comes from a jurisdiction other than China or Vietnam, should be sentenced to what appears to be the tariff of 12 months whereas other Magistrates may follow Barnett J. and impose the sentence of 15 months' imprisonment where there is the use of somebody else's identity card. The learned Magistrate in this appeal in fact and indeed followed Barnett J. in Shamim Nawaz.

9. That is a difference in approach by different High Court judges which I am not in a position to set right. It will have to be for the Court of Appeal, if a suitable case finds its way to that Court. Speaking for myself, I would say that the 15 months tariff suggested by Barnett J. should really only be followed if there is clear cut evidence that the use of somebody else's identity card or forged identity card has been resorted to, to try and obtain further employment in Hong Kong. An example would be where a defendant uses such an identity card to try to open a bank account in Hong Kong with a view to his salary from a job that he manages to find in Hong Kong being paid into that bank account.

10. In the instant appeal, quite clearly when the Appellant produced her identity card when asked to do so by the police, she was trying to further her remaining in Hong Kong, but it is of course also arguable whether in those circumstances she could have done anything else other than produce the identity card which she had on her, and which of course did not belong to her. There is no evidence in the instant appeal that the Appellant had indeed worked in Hong Kong, or was trying to find employment by the use of the lost identity card. I suppose it would be a fair inference to say that by the fact that she has continued to remain in Hong Kong, that she was trying to stay in Hong Kong with a view to obtaining employment for the obvious reason that salaries in Hong Kong are higher than they are in Sri Lanka.

11. Be that as it may, having regard to what I have already said about the present Appellant and following what appears to be the tariff for persons coming from places other than China or Vietnam, who commit offences involving somebody else's identity card or a forged identity card, I would allow this appeal and reduce the sentence on the first charge to one of nine months. That is on the basis that the starting point should be one of 12 months and taking into account her pleas of guilty and the fact that she has a clear record, the sentence would be reduced to nine months. The sentence on the second charge will remain as it is and the appeal is allowed to that extent.